New election law won't forbid the opposition, just disloyalty
I have served the Independent Commission Against Corruption (ICAC) for 27 years and took part in many investigations and enforcement actions concerning Hong Kong election law. Based on that experience, I must say that the current law is effective only in the areas of ensuring procedural fairness and corruption prevention.
For example, vote buying is rare in Hong Kong although very common in many countries, and due credit for this should go to the ICAC. However, the key problem, as has been exposed in recent years, is that the current election law cannot ensure that the candidates elected are patriots.
There are ample examples in recent years where those who eventually won public office have not only taken on a virulent anti-HKSAR and anti-China posture, but incited their supporters to follow suit. This has contributed greatly to the six-month-long devastating social unrest in 2019 and the failed "35-plus conspiracy to overthrow the SAR government". The events have shown beyond doubt that many of these elected legislators and district councilors are not only unpatriotic but traitorous by acting as puppets of foreign forces. This extraordinary aberrant situation undoubtedly would not be tolerated by any other country on Earth. It also left the Central Government with no alternative but to intervene as it cannot be expected to turn a blind eye to such an imminent threat to national security and the "one country two system" governance paradigm mandated for Hong Kong.
In many countries where I have visited, I have never seen any legislators or government officials who did not respond with solemnity whilst their national anthem is being played because patriotism is the most basic requirement of them. But in shameful contrast, many of our elected legislators not only are evidently unpatriotic, they have even resorted to begging a hostile foreign government to impose sanctions on their own government and its senior officials! They have therefore become a serious threat not only to Hong Kong but to China's national security. It is thus imperative that the electoral system which enabled their election must be drastically revised to ensure that only patriots can compete for elective office.
Thus, a resolution on improving Hong Kong's electoral system to be tabled before the current session of the National People's Congress, with proposed changes to ensure that only patriots be allowed to hold public office, should be welcomed. Such changes are fully within the power and responsibility of the top legislative body, in line with international standards. For example, the election system in Scotland is determined by the House of Parliament in the United Kingdom. When both the executive branch and the legislature are filled by patriots, it will undoubtedly improve their working relationship as they would be approaching their respective duties from the same baseline. The ugly physical altercations that marred LegCo proceedings are not only disgraceful in the extreme, more crucially, it deterred and distracted LegCo from conducting important legislative work, thereby adversely affecting the entire society. We should be grateful to the NPC for excising this cancer from our body politic for good!
The first major solution is to impose a vetting system to ensure all election candidates should be patriots. The current system of deploying a junior Administrative Officer as Election Officer to approve the nomination of election candidates is simply undesirable, and most unfair to the individual. Furthermore, his decision to disallow opposition candidates was often overruled by the Court of Appeal presided over by a lone judge and his/her decision is final. For such an important decision to be left in the hands of two individuals operating separately is risky to say the least and their negative decisions are likely to be challenged. There is also the danger of their decisions being influenced by their personal political inclinations.
Hence in my speech at the high-level symposium organized by the Chinese Association of Hong Kong and Macao Studies on Feb 22, I proposed setting up a high-powered Election Eligibility Vetting Commission to vet all election candidates. The Commission should consist of highly respected individuals and representatives of relevant government departments, such as the ICAC and the National Security Branch of the Hong Kong Police Force. Since this is already a statutory and quasi-judicial commission, its decision should not be easily subject to judicial review. Even if allowed, it should be handled by the full Court of Appeal or the Court of Final Appeal, based only on substantial justifications. And no appeal should be adjudicated by a single judge, as at present.
Firstly, to ensure the candidates can be properly vetted and not related to any foreign government, they have to make a detailed declaration to the Commission on whether they and their spouses are in possession of any foreign passports, including the BN(O) passports. Secondly, they should reveal whether they have worked for any local or international institutions funded by foreign governments, disclose their past communication record with foreign consulates and foreign governments, and declare any funds or remunerations for working for foreign governments or institutions etc. It should be made a criminal offense for any candidate failing to provide full and accurate disclosure and if proven, they would be disqualified even if elected.
However, I do not believe it should be the duty of the Election Eligibility Vetting Commission to bar all opposition candidates from entering the legislature. As Xia Baolong, head of the Hong Kong and Macao Affairs Office, has pointed out, the proposal is not intended to create political homogeneity. I also believe it is important for the legislature to have an opposition voice to ensure a healthy mix of opinions on all issues of public interest. This and striking a proper check and balance will prevent policy deliberations from stagnating. However, the President of LegCo should be alert to any subterfuge to undermine sovereignty and national security. So long as the candidate can demonstrate that he has never been involved in any anti-China and subversive or secessionist activities and has genuinely taken an oath of allegiance, he should be allowed to enter the race as a candidate of the opposition. The new election law should reconfirm such rights of the citizens to stand for election.
Additionally, the Election Eligibility Vetting Commission should be given the mandate to continue to monitor the performance of all elected candidates to ascertain whether they have acted or spoken in public in any way that might betray their breach of the oath. The Commission should also operate a complaint hotline to receive useful intelligence and complaints. The Commission should be given appropriate investigative powers to look into the complaints. If substantiated, the case should be referred to the Department of Justice to institute the disqualification process in court. In other words, there should be a proper enforcement system in place.
The biggest mistake the political opposition committed was to reject in 2015 the constitutional reform proposal for the 2017 election of the chief executive, which would have allowed universal suffrage on candidates nominated by the nomination committee. Had they supported it, Hong Kong would have a stable political environment by now with a healthy coexistence of the opposition parties contributing to the further development of democracy, Hong Kong style. It is to be hoped that when the dust has settled under the new election system and found to be working well, the reform proposal of 2017 can be resurrected to enable the public to cast their vote on their future Chief Executive, and to fulfill the requirement under Article 45 of the Basic Law that "the ultimate aim is the selection of the chief executive by universal suffrage upon nomination by a broadly representative nominating committee". This can probably be done in the election of the chief executive in 2027.
As a HKSAR spokesman has said, the principle of "patriots governing Hong Kong" is fundamental to national sovereignty, security, development interests, as well as the long-term prosperity of Hong Kong." Upon successful implementation, it will undoubtedly enable "one country, two systems" to continue beyond 2047.
The author is a former deputy commissioner and head of operations of ICAC and an international anti-corruption specialist.
The views do not necessarily reflect those of China Daily.
