Lost In Translation

There has been a considerable focus recently on the Basic Law and the Rule of Law, and their interaction. Perhaps neglected in the process has been a different but relevant concept: The Law of Unintended Consequences, whereby a purposeful action gives rise to outcomes that are not the ones foreseen or intended by the instigator.

Hong Kong’s tortuous path towards political reform is a case in point. The first reference to the idea of universal suffrage for selection of the Chief Executive comes in Article 45 of the Basic Law promulgated as long ago as 1990. Looking forward to 1997, its purpose was to reassure. Naturally attention turned to the subject in the early part of this century. While people understood that the move towards universal suffrage had to be in accordance with the "principle of gradual and orderly progress" the reform package put forward in 2014 was widely perceived as disappointing. For an appetite whetted more than two decades earlier, the plan to stick with an unreformed election/nominating committee which was manifestly unrepresentative and require endorsement of all candidates by a majority, was simply unpalatable.

The White Paper on governance of Hong Kong, intended to clarify and set things straight, only stirred things up and led to Occupy. The government let the action linger, hoping public anger would pay dividends in the 2016 Legco elections. While it was correct that the 79 days of disruption brought the protesters momentary opprobrium, memories quickly faded. By the time of the election, the pro government share of the vote actually fell, and the attack on the idea of independence led directly to a near 20 per cent share of the vote for a militant localist faction. This was surely not the objective.

Now the government is trying to overturn the outcome of the elections. The practice of banning some potential candidates from standing, then using all means at hand to unseat some of those elected, is a tactic more usually associated with third world countries following a military coup. The general concerned sheds his military fatigues then tries to gain credibility through the ballot box. When this manoeuvre fails, he resorts to violence. Not really the sort of example we want to be seen aping in Asia’s World City.

In the short term, the judicial review sought by the chief executive against the decision by the Legco President Andrew Leung to give Sixtus Leung and Yau Wai Ching another opportunity to take the oath has been successful. Mr Justice Thomas Au ruled in the High Court that their oaths were not valid, they should not be given a second chance and their positions should immediately be vacated. Many observers thought he might decline to rule at all, and simply refer the matter back to the Legco president. The problem with one arm of administration delving too deeply into the processes of another is that it inevitably generates more requests to do so. And sure enough we now have legal challenges against two further groups of Legco members (pro government and opposition), plus a rival challenge against the chief executive himself who was suitably sincere and solemn but omitted two key words.

The pair have sought a stay of implementation pending appeal. Bearing in mind that other members who had in the past politicised their swearing in and then done it properly second time round have been permitted to take up their seats, did Leung and Yau have a "legitimate expectation" that they would enjoy similar treatment? Legco Leung certainly thought so, hence his original ruling. That is for a higher court to determine, if the appeal gets that far.

Meanwhile the standing committee of the National People’s Congress has sought to clarify the position with respect to Article 104 of the Basic Law. That article clearly requires all the persons concerned to "swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and swear allegiance to the HKSAR of the PRC". Unfortunately the Interpretation is different: it talks of "…a legal pledge … to the People’s Republic of China and its Hong Kong Special Administrative Region…" (emphasis added). Has something been lost in translation here? Possibly, as I am working from the English version. Does the original in Chinese have an apostrophe instead of "and its" so that the pledge is to the PRC’s HKSAR, which would at least match the original? Or do we now have a new oath? Perhaps we need an interpretation of the interpretation.

If at the end of the day there are two (or more) vacant Legco seats, then we are in bi-election territory. I do not think the people of Hong Kong are fooled for one minute about what is going on here. In each constituency, an impeccable opposition candidate will stand, win a majority, and take the oath impeccably. Unfortunately this tragedy – or farce – will continue until the government starts to address the underlying grievances over lack of meaningful political reform instead of just hammering the symptoms, which incidentally generates new grievances in the process.

Plus ca change, plus c’est la meme chose.