HK Announces Oath Requirement for Elected Officials, Paving Way for More Opposition Disqualifications

The Hong Kong government has introduced a bill that will grant it the power to disqualify elected officials for failing to pledge loyalty, as the authorities define it, to the HKSAR or for betraying their oath of office. The proposal paves the way for the removal of pro-democracy District Councillors, local representatives who were elected to office in landslide victories in the fall of 2019. The changes came one day after Xia Baolong, Beijing’s director of Hong Kong and Macau Affairs, declared in a strongly worded speech that Hong Kong must be ruled by “patriots,” echoing words from Xi Jinping earlier this month. Xia’s speech signalled that even more electoral reforms were to be expected, with media reports suggesting possible changes to the composition of the 1,200 person Chief Executive Election Committee.

Over the last eight months, Hong Kong has been rocked by dramatic changes to the city’s elected bodies, including the postponement of scheduled elections, the disqualification and mass resignation of pro-democracy lawmakers, and the arrest of every pro-democracy primary candidate for national security crimes. But as a formal change to Hong Kong’s electoral rules, the newly proposed amendments may be an even more formidable obstacle to pro-democracy candidates seeking future public office, likely further crushing Hong Kong’s opposition bloc and cementing Beijing’s political hold over the city.

The proposed changes were announced by Secretary for Constitutional and Mainland Affairs Erick Tsang in a press conference on Tuesday. The Washington Post’s Shibani Mahtani and Theodora Yu reported on the broad strokes of the plan:

On Tuesday, Hong Kong’s government announced that anyone running for these local positions will need to be a “patriot” — meaning they must swear loyalty not to their constituents but to Beijing and the Communist Party — as China moves to quash the territory’s last avenue of democracy.

The changes, which are expected to be introduced to the legislature — where there is no viable opposition — next month and become law soon thereafter, will trigger the expulsion of several young pro-democracy councilors, even if they read the oath as instructed. Disqualified candidates will be barred from running in any elections for five years.

“You cannot say you love the country but you don’t respect” the Chinese Communist Party, said Erick Tsang, Hong Kong’s Secretary for Constitutional and Mainland Affairs. “It does not make sense.” [Source]

Due to the five year ban, disqualified individuals would in effect be barred them from at least two election cycles, as terms of office are four years long.

Tsang announced that sitting district councillors who were elected in the fall of 2019 would also be required to take the oath. That requirement opens the door for the government to disqualify current representatives based on any perceived “insincerity” in their oath-taking. Elected officials will be required to swear to “uphold the Basic Law and bear allegiance to the HKSAR.” The government produced a two-and-a-half page list defining the meaning of those terms, which it emphasized was non-exhaustive. Two pages of the list outlined “negative” acts that would disqualify an individual from office, including but not limited to:

  • committing acts that endanger national security, including offenses under the Hong Kong National Security Law
  • advocating or supporting Hong Kong independence, including implementing activities such as referenda for “self determination of sovereignty or jurisdiction,” or “devising constitution by all people”
  • “soliciting” interference by governments or organizations in the affairs of the HKSAR
  • desecrating the national or regional flag, or insulting or disrespecting the national anthem
  • committing acts that “undermine the order of the political structure led by the Chief Executive,” including “indiscriminately objecting” to the government’s motions, rendering the Government incapable of performing its duties, or forcing the Chief Executive to step down

The Guardian’s Helen Davidson reported that Tsang said candidates’ past behavior would be considered in decisions about their eligibility for office:

Past behaviour would be taken into account, raising the prospect that all participants in last year’s unofficial primaries held by the Democratic caucus, many of whom were arrested in January, would be affected. Tsang confirmed four district councillors disqualified from elections last year would be affected.

Tsang said there was no specific retrospective effect in the bill, “but whether or not we would judge acts committed in the past by a certain person, that would depend on the individual circumstances”.

“If you take the oath-taking seriously, then you don’t have to worry.” [Source]

Several of the conditions included on the “negative list” appear to target specific electoral strategies pursued by pro-democracy candidates in the past. Observers have noted that the conditions relating to holding a referendum, for example, seem aimed at quashing strategies like the unofficial primary held by pro-democracy candidates in July 2020, or unofficial referenda that have been held in more distant past. The provision against “indiscriminately objecting” to the government’s policies appears to target individuals involved in the laam-chau strategy proposed by University of Hong Kong law professor Benny Tai to create a deadlock in that would ultimately force the resignation of the Chief Executive. In January of this year, national security police arrested Tai alongside every single pro-democracy candidate who ran in the 2020 primary, alleging that their participation in Tai’s plan constituted “subversion” under the National Security Law.

Tsang also confirmed that the amendments would lead to the immediate removal of four district councillors who had earlier been disqualified from running in the postponed 2020 Legislative Council elections. District councillors are allowed to concurrently serve in the Legislative Council, the city’s lawmaking body. South China Morning Post’s Tony Cheung and Lilian Cheng explained why the four were disqualified last July:

Last year, four district councillors – Shum, Fergus Leung Fong-wai, Tiffany Yuen Ka-wai and Cheng Tat-hung – were among a group of activists banned from running for the Legco elections, which were originally slated for last September but postponed by the city leader for a year because of the pandemic. Electoral officials had cited the political stance of the four in deciding they could not genuinely uphold the Basic Law.

[…] [Tsang] added: “Theoretically, the four district councillors would lose their qualification … For individual lawmakers, they would have lost their qualification to run in elections from the moment they were decided to have refused to take their oath, or failed to uphold [the Basic Law] and bear allegiance.” [Source]

Occupying the lowest rung of elected office, district councillors perform fundamentally different roles from lawmakers in Hong Kong. Councillors’ jurisdictions are much smaller, and they typically manage quality of life issues such as garbage disposal or traffic . For The New York Times, Elaine Yu profiled one recently elected pro-democracy councillor who was elected as part of the pro-democracy landslide in November 2019:

Some days, Cathy Yau wanders down dark alleys looking for rats to poison. Other days, she helps food banks deliver meals to older people. Often her phone rings with calls from constituents: neighbors asking about their rights during a police stop-and-frisk, or how to best navigate the city’s welfare bureaucracy.

Such is life for a Hong Kong district councilor.

“I do things that nobody’s directed you to do, but which no one else would do if I didn’t,” she said.

[…] Since taking up their posts a year ago, many district councilors have sought to redefine the office — with mixed results. They have boycotted meetings with senior officials, accused the city’s police chief of lying and extracted information about the surveillance infrastructure in their neighborhoods. In turn, government representatives have staged walkouts when the councilors tried to discuss political issues at meetings. [Source]

That the government appears intent on restraining even these relatively minor opposition figures underscores the extent of its determination to assert control over the city’s political scene.

Still, the announcement on Tuesday left many questions unanswered. A major unknown is exactly how the Hong Kong and Central People’s government plan on enacting these electoral changes. In years past, Beijing has insisted that changes to the electoral process had to go through a “five-step process” of approval that includes a two-thirds majority vote in favor in Hong Kong’s Legislative Council. But as legal experts pointed out on Tuesday, so many pro-democracy lawmakers had either resigned or been disqualified from Legco that there were not enough remaining lawmakers to vote for electoral reforms.

South China Morning Post’s Jeffie Lam and Lilian Cheng reported on options for how Beijing could push through the oath-taking changes despite the shortage of legislators in Hong Kong:

[…] “We are now faced with an unprecedented situation. We only have 44 legislators … So if any election-related changes are to be made, my personal view is they can only be done by exercising power stated in the [Chinese] constitution,” Tam said, referring to an article that outlines the power of the National People’s Congress to decide on the systems instituted in China’s special administrative regions, which include Hong Kong.

However, only a simple majority in Legco would be needed to pass the local following a Beijing resolution.

[Ip Kwok-him, a local deputy to the National People’s Congress,] estimated that Beijing’s resolution and accompanying details would be created through the National People’s Congress Standing Committee (NPCSC) much as the national security law was last June.

Concrete details of the Beijing-imposed legislation were announced on the same day the NPCSC passed it unanimously on June 30 and listed it under Annex III of Hong Kong’s Basic Law. [Source]

Any changes to the oath-taking requirement promulgated by Beijing could be expected to come bundled with even more electoral reforms. On Monday, Beijing’s top official in Hong Kong, Xia Baolong, gave his first public speech since taking office in 2020. The Wall Street Journal reported Xia’s announcement that Beijing would take charge of rewriting Hong Kong’s electoral laws when top leaders gather for their annual session on March 5:

At an annual legislative session in March, Chinese lawmakers are expected to vote on the proposed changes to the composition of a 1,200-member committee that picks Hong Kong’s chief executive, the people said.

The revisions would drastically reduce, or potentially eliminate, the 117 seats assigned to Hong Kong’s district councilors, a bloc now dominated by opposition groups, they said. These seats would be given to some of the more than 200 Hong Kong-resident members of China’s top political advisory body, the Chinese People’s Political Consultative Conference, the people said.

The plan is part of sweeping changes presaged by the chief of Beijing’s office on Hong Kong affairs, Xia Baolong, in a speech on Monday in which he said that Hong Kong’s executive, legislature and judiciary must comprise “true patriots.” In his first public speech after taking the office in early 2020, Mr. Xia called anyone who opposes the governments of China or Hong Kong “destroyers” who shouldn’t be able to exert influence in the future. [Source]

Almost eight months after the enactment of the National Security Law, the pace of democratic backsliding in Hong Kong has shown no sign of slowing down. The dramatic changes to the electoral system are just one of several major developments in the last week. Separately, a move to overhaul the embattled public broadcaster RTHK has exacerbated fears about the rapid decline of press freedom in the city. The broadcaster’s editor-in-chief, a veteran journalist, was replaced by a civil servant with no journalistic background after a government report found “serious inadequacies” including “poor management” and “lack of editorial ” at RTHK.

In judicial news, pro-democracy media mogul Jimmy Lai was again denied bail last week, after the judge cited new accusations from police that Lai had committed additional national security crimes. Separately, Lai, alongside eight other veteran pro-democracy activists including Martin Lee, Margaret Ng, Albert Ho, and others, went on trial this week for illegal assembly in relation to a peaceful protest on August 18 2019. They face sentences of up to five years in prison.

In the midst of all of these developments, the U.K. officially rolled out its online application for BN(O) passport holders, allowing applicants to apply from their smartphones, circumventing the need to visit the consulate’s processing center. On Tuesday, it shared space at the top of the App Store with Hong Kong’s contact tracing app, perhaps sharing a common ethos with the latter’s name: LeaveHomeSafe.

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