November 25 is the next special election, scheduled to fill another of the seats vacated in the long-running oath-taking saga. A total of six legislators-elect were disqualified after Beijing unexpectedly stiffened the rules on oaths-of-office. The six, all democrats, had been elected to the Legislative Council in September 2016.

Four seats were filled in a special election earlier this year, but not all by democrats. Two were lost to their pro-establishment rivals: one due to official manoeuvring over which democrats had no control; one the result of self-inflicted campaign wounds. Two of the six seats remain unfilled.

“Long Hair” Leung Kwok-hung’s appeal is still wending its way through the courts. Lau Siu-lai abandoned her appeal in the hope of regaining her seat and moving on more quickly, a hope now dashed. Toward the end of the two-week nomination period, Lau was notified, on October 12, that the officer in charge had ruled her ineligible. The reason: she is an advocate of self-determination. Lau can appeal, but the process will take many months to complete. Meanwhile, the end result will probably be another democratic seat lost to the pro-government opposition. Two of the six disqualified legislators-elect were from Kowloon West.

Lau Siu-lai. Photo: inmediahk.net.

Hong Kong’s activist pro-democracy politicians are playing a game of cat-and-mouse with the Hong Kong government and the government is winning… by means fair and foul. Given the political forces ranged against them, democrats need all the strength they can muster but their forces in Kowloon West remain as fractured as they were during the special election they lost in this same district last March. Kowloon West is one of Hong Kong’s five Geographic Constituencies that elect half or 35 members of its 70-seat Legislative Council.

The official aim

Central government officials in Beijing are no longer making any secret of their objective and Hong Kong officials echo the same refrain, word for word. There is no verbal mediation or debate. But they are all targeting not so much individuals as an idea, often referred to with a one-word description. They call it “separatism,” used to denote all who have begun to disassociate themselves whether in word or deed from the central government’s authority.

This catch-all phrase was adopted as Beijing’s political theoreticians sifted through the maze of dissident political opinions they saw emerging from Hong Kong’s 2014 Umbrella-Occupy Movement. Straightforward independence advocate Andy Chan Ho-tin with his Hong Kong National Party was the easiest to identify and target. He was among the first to be singled out and was unceremoniously barred from contesting the 2016 Legislative Council election long before his party was finally declared illegal last month.

Andy Chan. Photo: Pool/SCMP.

Also easy to target were the likes of Youngspiration activists Baggio Leung and Yau Wai-ching. They were the first of the six legislators-elect to be disqualified due to the vulgar and insulting language they used during the swearing-in ceremony.

But the officials and their theoreticians then moved onto more difficult ground and selectively targeted another four legislators for disqualification. These four were initially allowed to retake the oaths they had embellished with pro-democracy sentiments. This followed the Legislative Council’s customary practice. They then took their seats and went about their legislative duties in the normal way. And despite their pro-democracy sloganeering, these four had never advocated independence for Hong Kong.

So, the definitions for “independence” were officially elaborated and expanded to include anything that seemed akin to independence-like perspectives. Hence the utility of the catch-all term “separatist” and the closest, most clearly identifiable, concept in that category, “self-determination.”

Yet so popular and pervasive had this concept become by the September 2016 election that most of the pro-democracy parties were using it in some way… without being very explicit about what they meant by the term.

Baggio Leung and Yau Wai-ching. File photo: HKFP

The general impression that listeners took away from all the self-determination arguments was that pro-democracy politicians were still arguing the case that had inspired and provoked the 2014 Occupy Movement street blockades. It had been about Beijing’s rejection of all of Hong Kong’s proposals for a local government, legislature and Chief Executive, formed by universal suffrage elections.

But none of that was a local Hong Kong invention. It had been spelt out long before in Hong Kong’s Basic Law constitution (Articles 12, 45, 68), which had been drafted to Being’s specifications and promulgated by the central government itself.

Yet despite this history, well-remembered by all the thousands who lived through it, Beijing’s argument has now been reduced to a simple declarative one-dimensional talking point, rigidly adhered to by all pro-Beijing politicians here and by Chief Executive Carrie Lam herself. The Basic Law must be respected, and it declares “one-country, two-systems” to be Hong Kong’s governing principle.

Independence and/or self-determination violate the “one country” half of that principle and therefore stand in violation of Hong Kong’s Basic Law constitution. Advocates consequently cannot qualify as upholders of the Basic Law, even if they sign the confirmation forms in that respect as required of all election candidates.

Hence Lau Siu-lai cannot be certified as a valid candidate in the November 25 election.

Photo: Holmes Chan/HKFP.

Commenting briefly on the case in a recent TV interview, Carrie Lam said only that the law must be followed. She did not explain or elaborate. She probably never will.

This stricter application of Hong Kong’s Basic Law dates from 2014. It was then applied with more overt determination following the success of post-Occupy candidates in Hong Kong’s 2016 election, culminating in President Xi Jinping’s speech here last year.

He visited Hong Kong to celebrate the 20th anniversary of its return, on July 1, 1997, from British to Chinese rule, and President Xi delivered the message in person. He said independence for Hong Kong is a “red Line” that must not be crossed. President Xi himself did not elaborate on the additional separatist variations now being applied in practice to his independence red line. But since then it has been an uphill struggle for Hong Kong democrats every step of the way and with no relief in sight.

Teacher Lau in Kowloon West

Lau Siu-lai is a college lecturer, street-market advocate, and democracy activist. “Teacher” is a popular title bestowed by fans of the street-side classes on democracy she conducted in 2014. That was during the Occupy Movement’s street blockades, which qualifies her as a politician of the post-Occupy generation.

She further demonstrated her political beliefs by embellishing her oath-of-office during the swearing-in ceremony for newly-elected legislators in October 2016. But she was among those initially allowed to re-take their oaths in the conventional manner and assumed, along with the others, that the matter had been resolved… only to find herself among the four to be singled out and selectively disqualified by court order almost a year later.

Lau Siu-lai taking her oath. Photo: Stanley Leung/HKFP.

“Long Hair” Leung Kwok-hung’s pending appeal has been lodged on the selective retroactive nature of the disqualification procedure.

But now Teacher Lau finds herself with another selective retroactive problem, namely, Beijing’s decision to snuff out all the ideas newly defined as separatist. Her decision to try and regain her seat was nevertheless based partly on the experience of another legislator, Edward Yiu Chung-yim.

Like Lau, he was among the second batch to be disqualified. But he was allowed to join the March special election on grounds his original disqualification contained no provision about eligibility in future elections.

Encouraged by Yiu’s experience, Lau began organizing her campaign to try and regain the seat. She joined the Labour Party, where she was welcomed as a kindred spirit. This put her in touch with their old-style working-class Kowloon West voter base, to augment her own younger constituency with their post-Occupy political concerns. In return, she tapped long-time labor-movement activist and party founder Lee Cheuk-yan to stand by as her Plan B… just in case she was disqualified. His candidacy was approved this week.

Lee Cheuk-yan (second from right) at the annual Tiananmen Massacre candlelight vigil on June 4, 2018. Photo: inmediahk.net.

Unlike ousted lawmaker Edward Yiu, Teacher Lau had been actively engaged in all the street-side Occupy debates and had more well-thought out political positions. These may have impressed like-minded post-Occupy partisans but did her no good in the eyes of Hong Kong officials, programmed as they now are to hold Xi Jinping’s red line no matter what.

The officer assigned to her case, Franco Kwok Wai-fun, ruled that – although she had recently removed words about self-determination from her political platform – in fact her political views had not changed.

Most damning in his view was a joint statement she had made during the 2016 election campaign. Others joining in this statement were activist Eddie Chu Hoi-dick, then a candidate who was elected to the legislature where he remains; and Demosisto, the political party founded by activist Joshua Wong and his friends. They had all declared themselves for democratic self-determination.

Franco Kwok Wai-fun. Photo: GovHK.

Kwok also cited Lau’s original oath at the October 2016 swearing-in ceremony, which had been discounted as a long-term liability in Edward Yiu’s case earlier this year. But beyond that she had at the same time, in October 2016, posted comments online about the democratic illegitimacy of the entire Hong Kong government. He also cited more recent comments as proof that she remains committed to the idea of self-determination for Hong Kong.

Implications

The election officer’s ruling obviously implicates many others and the consequences are potentially long-term. His rationale is ominous since this is not the first case formally argued on the same grounds. Demosisto’s Agnes Chow Ting had been selected by Hong Kong Island democrats to contest the March special election after the legislator-elect, Nathan Law, was disqualified over his oath-taking.

Agnes Chow was not allowed to stand as a candidate due to her party’s advocacy of self-determination. It had not been an eligibility criterion for the October 2016 Legislative Council election or Nathan Law, who also belongs to Demosisto, would not have been allowed to enter the race.

Joshua Wong, Agnes Chow and Nathan Law of Demosisto. File photo: inmediahk.net.

Ironically, this group, more than most others, has tried to distinguish between self-determination and independence. Demosisto has been careful not to call for independence but leaves it open as a possibility if Hong Kong voters so decide in some future referendum.

Agnes Chow has challenged her disqualification through a judicial review application based on the judgement against the Hong Kong National Party’s Andy Chan. His party has now been formally banned but was not illegal at the time he requested and received permission for a judicial review of his disqualification as the party’s candidate in the 2016 election.

Chan had to wait over a year for the results but was rewarded with a lengthy ruling. The judge held that the government-appointed district level civil servants assigned to serve temporarily as election officers are not only responsible for paperwork formalities. They are also responsible for vetting in substantive terms aspiring candidates’ political beliefs and determining their eligibility on that basis. Chan had been deemed ineligible because his party’s published materials called for abolishing the Basic Law and using Legislative Council elections as a first step in prompting independence.

But the judge had added a proviso, namely, that prospective candidates should be given a chance to explain their political beliefs. Also, there must be “cogent, clear and compelling” reasons to formally ban an aspiring candidate based on those beliefs.

Andy Chan Ho-tin holding a court judgment on his election petition. File Photo: inmediahk.net.

Following this precedent, Agnes Chow argued that she was not given a chance to explain to her election officer, but she is still waiting for the results of her judicial review application. Teacher Lau, who was also not given a chance to explain her views to her election officer, will join the line waiting for answers… with more cases to illustrate how Hong Kong’s officials and judges have become enforcers for Beijing’s “one-country” rule.

Meanwhile, the time has come for Hong Kong’s democracy activists to give more thought to the distinctions that can be drawn between independence and self-determination. Beijing has chosen to decree that they are one and the same and Hong Kong officials are taking their cue from Beijing without asking any questions of their own. So no help can be expected from that quarter.

Joshua Wong and his Demosisto friends began by trying to differentiate but have so far not followed up to provide judges and election officers with “cogent, clear, and compelling” reasons as to why self-determination and independence need not be regarded as a distinction without a difference.