The HK Government, via its Electoral Affairs Commission, has tarnished HK's reputation for free and fair geographic elections for half of its Legislative Council, just to exclude a few candidates who were previously on the political fringe. There is nothing inconsistent between pledging to uphold the constitution and seeking to change it, and the Government now risks the courts overturning the election results. We also explain the fragmentation caused by HK's version of the party list system which has now reached epic proportions.

A sordid electoral affair



Something must be said about the Hong Kong Government's idiotic, sordid approach to the Legislative Council elections, which is undermining what little credibility the rigged assembly had. Until now, whatever you think about the small circle corporate elections (or uncontested nominations) for many of the so-called functional constituencies, you might at least have believed that in the 5 Geographic constituencies which elect 35 seats, the process for nomination was fair and open. No longer.

In addition to the standard nomination form, which requires candidates (nominated by 100-200 electors) to declare that they will "uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region", this time around, the Electoral Affairs Commission (EAC) has devised a new form, noting in a press statement that "recently there has been public opinion concerning whether the candidates do fully understand the Basic Law". Apparently, in Hong Kong, procedures are now devised on the basis of "public opinion" rather than legal requirements.

The EAC (the members of which are appointed by the Chief Executive) has singled out three Articles of the Basic Law which it presumably believes are particularly misunderstood, although they seem perfectly clear to us, and the new confirmation form requires the proposed candidate to confirm as follows:

"I understand that to uphold the Basic Law means to uphold the Basic Law" (with you so far) "including the following provisions:

Article 1

The Hong Kong Special Administrative Region is an inalienable part of the People's Republic of China.

Article 12

The Hong Kong Special Administrative Region shall be a local administrative region of the People's Republic of China, which shall enjoy a high degree of autonomy and come directly under the Central People's Government.

Article 159(4)

No amendment to this Law shall contravene the established basic policies of the People's Republic of China regarding Hong Kong."

Now this confirmation really adds nothing, because when you pledge to uphold the Basic Law, that includes all of its provisions, and indeed, the first thing an elected legislator must do after sobering up from celebrations, under Section 19 of the Oaths and Declarations Ordinance, is take the Legislative Council Oath in Schedule 2 of that Ordinance, which reads:

"I swear that, being a member of the Legislative Council of the Hong Kong Special Administrative Region of the People's Republic of China, I will uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China and serve the Hong Kong Special Administrative Region conscientiously, dutifully, in full accordance with the law, honestly and with integrity."

That's all fine as far as it goes, but here's where the Government has gone too far: via the Returning Officers (all of whom are full-time civil servants, mostly District Officers, appointed by the EAC) the Government has been vetting the proposed candidates to determine whether, in their view, the candidates are bona fide (in good faith) in signing the declaration in the nomination form.

First of all, that's not a function of returning officers. If anyone is alleged to have made a false statement in an election-related document (for example, by claiming a bogus doctorate), that is a matter for the police to investigate, the Department of Justice to prosecute and the courts to determine after a fair trial. The duties of the Returning Officer are stipulated in the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation, particularly Section 16, and they don't include second-guessing the candidate's intent or polygraphing them.

Second, even if you think that Returning Officers can make such a determination, what do they mean by bona fide in this context, and by what criteria do they determine this? They are conducting e-mail interviews and trawling through past public statements by, or attributed to, the candidates to determine whether or not the candidate supports the notion of HK sovereign independence (or some higher degree of autonomy than HK enjoys). If the Government (via the ROs) determines that the candidate does not agree with the said Articles of the Basic Law, then the declaration is deemed by the RO to be not bona fide and the candidate is disqualified, even if they have signed both forms. One such example is the rejection of Edward Leung Tin Kei, who ran in the previous New Territories East by-election earlier this year and received 15.4% of the Vote.

Upholding the law does not mean agreeing with it

Here's the problem. Any person can disagree with the contents of a law, including a constitutional law, while at the same time and in good faith pledging to uphold it as long as it is the law. Indeed, upholding the law is fundamental to the rule of law. There is nothing inconsistent between bona fide pledging to uphold a constitutional law and seeking to change it, however outlandish those proposed changes may be. If this was not true, then no constitution on Earth would ever be amended, because anyone seeking an elected office would have to pledge (on pain of criminal prosecution for lying) that they don't want to change the constitution. Although HK legislators cannot introduce a bill to amend the Basic Law, under Article 159, any amendment requires a two-thirds majority of all LegCo members. So if "upholding" the Basic Law means agreeing with all of its contents then no proposed amendment would ever obtain that approval.

You may campaign to abolish constitutional freedom of speech or religion, which are embedded in the Basic Law, but in the meantime, you can and must, if you run for elected office, pledge to uphold it. You may seek to raise or lower the constitutional minimum age (40) for becoming Chief Executive, but again, you uphold the current limit while it stands. Members of the UK parliament have sought independence for Scotland, something which would repeal the Acts of Union 1707, but there is nothing illegal about seeking that while at the same time upholding and abiding by the current law, otherwise Scotland would have very few MPs in Westminster - all the Scottish National Party members would be disqualified.

So even if the Returning Officers can make a determination that a declaration is not bona fide (and we say that is not their role), and even if a candidate is calling for constitutional change, that doesn't mean that he won't honour his declaration to uphold the Basic Law in its current and future forms.

By imposing this filtration system on the views of candidates, the HK Government via its EAC is leaving itself wide open to judicial review, the result of which could be the overturning of the election of all the legislators in each constituency where someone has been denied a valid nomination. Indeed, it may go further than that, because it is arguable that potential candidates have been deterred by this new vetting mechanism from coming forward, and that therefore the elections (or uncontested nominations) in all of the constituencies are tainted, whether or not a candidate for that constituency was rejected.

Perhaps the Government knows this, and is hoping to argue that when the dust has settled, a sympathetic judge will rule against the filtering but allow them to get away with it until the next elections in 2020, rather than conduct a re-run, in which case it will have succeeded in excluding certain people from LegCo. We hope not, because it cannot be said that a challenge to this procedure was a surprise, as putative candidates have already applied for a judicial review and been told to wait.

Stoking the flames

The correct political strategy for dealing with ideas that most of your population would find unworkable is to ignore them, but the Government has chosen to stoke the fire, starting with the Chief Executive's policy address on 14-Jan-2015 when he poured oil on a Feb-2014 HKU student magazine article and a 2013 book advocating Hong Kong's self-determination which until then had garnered very little attention. Now they have become recommended reading, if you can find a copy.

The attention on independence advocates has been further increased by claims from Beijing's officials in HK that even discussing independence on a "large-scale" would be sedition under the Crimes Ordinance. The problem with that claim is that the definition of "seditious intent" in Section 9 excludes an intent "to persuade Her Majesty's subjects or inhabitants of Hong Kong to attempt to procure by lawful means the alteration of any matter in Hong Kong as by law established" (for "Her Majesty", read "The PRC"). So calls for constitutional reform by lawful means are explicitly excluded from seditious intent. There is nothing illegal about them, futile though they may be.

And if that wasn't enough, the HK Government (and at all times, we must assume the PRC Government's wishes accord with it) has, via the Companies Registry, been refusing to register companies which it thinks may represent political parties which call for independence, while the Post Office has been filtering election materials for their mentions of "civil referendum" or "self determination". The Government has, through its own heavy-handedness, boosted popular sympathy for what was previously a small minority on the fringes of the political map and given them more publicity than they could have dreamed of.

This publicity and sympathy, together with HK's peculiar electoral system, is why, if the candidates had been allowed to run, they would probably have secured several seats in LegCo. Ironically, by banning them, the Government has boosted the chances of the traditional pan-democrats who will now face a bit less fragmentation of the vote.

The electoral maths

Perhaps Beijing is now coming to regret the system of "proportional representation" which it introduced after 1997, abandoning the previous first-past-the-post system with 1 seat per constituency. They introduced this party list system to guard against the pro-democracy parties sweeping all the seats. Instead we have 5 jumbo constituencies, where the two largest (New Territories East and New Territories West) each have 9 seats, so mathematically, one only needs 10% of the votes plus 1 vote (the Droop quota) to be certain of election, and there is a good chance of election with substantially less than that. As we explained in our 2004 article One Vote, Wrong System, if there are L lists of candidates for S seats, and V votes are cast, then it is theoretically possible to be elected with only V/LS+1 votes.

The Government knows this. It's their system. They wanted it. Two other aspects lead to fragmentation of the vote, particularly for the pan-democrats who are less tightly-coordinated than the pro-government camp. First, the system uses a Hare Quota (V/S) rather than a Droop Quota (V/(S+1)) to allocate seats, so split lists are more efficient. For example, in a 5-seat constituency, a list needs 36% of the votes to guarantee 2 seats, or 18% per seat, whereas 2 separate lists will certainly succeed if they each get 16.67%. Second, votes are not transferable (electors must choose 1 list only and cannot rank lists in order of preference), so single-member lists with low support have a chance of election rather than seeing their votes transferred to more popular lists of candidates.

The Single Transferable Vote (STV) system is in fact used in 4 of the so-called Functional Constituencies (Agriculture & Fisheries, Heung Yee Kuk, Insurance and Transport), although it only comes into play if there are at least 3 candidates, which has only happened twice in the SAR era, both times in the insurance constituency (1998 and 2008). It won't happen in 2016, with 2 of them uncontested and the others having 2 candidates each.

In 2016, the fragmentation in the geographic constituencies has reached epic proportions: in New Territories East, there are 22 lists competing for 9 seats, and across the SAR there are 84 lists for 35 seats, compared with 67 lists for 35 seats in 2012, 53 lists for 30 seats in 2008 and 35 lists for 30 seats in 2004.

In NT East in 2012, there were 19 lists and the lowest-scoring successful candidate, Gary Fan Kwok Wai, was elected with 6.16% of the votes, while the highest-scoring was Leung Kwok Hung with 10.39% of the votes, still less than the Hare Quota of 11.11%. This year's lottery should produce some interesting results.

© Webb-site.com, 2016

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