Edward Leung talked to the press after his candidacy was invalidated by the returning officer. Photo from the Stand News. Non-commercial use.

Hong Kong's government has disqualified six potential candidates from running in the 2016 Legislative Council election for their political platforms that are pro-independence or “localist,” referring to politics that promote the values and culture of Hong Kong over those of mainland China.

The decision was made by the city's returning officers (election officials) and marked the first time the civil servants have politically screened a candidate. Many believe that the move is meant to block Hong Kong's pan-democratic alliance from getting enough seats to exercise their veto power in the Legislative Council over election reform.

Moreover, a legislature with marginalized opposition parties will also pave the way for the passage of Basic Law Article 23, which is a local adaptation of China's own strict legislation on national security. Hong Kong is a special administrative region of China that enjoys many more freedoms than the mainland, but many fear that autonomy is increasingly under threat.

The 2016 Legislative Council election will be held on September 4, and the nomination process took place between July 15 and 29.

In fact, abrupt measures were introduced to fence off pro-independence and localist groups. Just two days before the nomination began, the Electoral Affairs Commission set a new rule requiring potential candidates to sign a “loyalty” declaration accepting Chinese rule and renouncing independence for the city. Since the new rule has no legal basis, a third of the nominees from pan-democratic groups have refused to sign, and one has applied to the court for judicial review.

As the loyalty declaration is not working, the Electoral Affairs Commission requested that the returning officers “make their own judgement” on the nominees’ loyalty, resulting in six of them not passing the loyal test and being disqualified:

• Lai Yee Man, Conservative Party, a Facebook-based political group which advocates Hong Kong's reunification with the United Kingdom, the city's former colonizer.
• Yeung Ke-cheong, Democratic Progressive Party of Hong Kong, a small political group advocating local interests first. He did not sign the loyalty declaration and submitted a separate statement denouncing Hong Kong's constitution, which is called Basic Law.
• Chan Ho-tin, Hong Kong National Party, a one-man pro-independence group.
• Nakade Hitsujiko, Nationalist Hong Kong. He denounces the “One Country, Two Systems” principle, which allows Hong Kong a high degree of autonomy, and advocates a “city-state” Hong Kong.
• Jamie Chan Kwok-keung, a localist and a district councilor with no party affiliation.
• Edward Leung Tin-kei, Hong Kong Indigenous. The group is pro-Hong Kong independence, but Leung had signed the loyalty declaration.

A Facebook-fueled disqualification

Edward Leung Tin-kei's disqualification is the most controversial because he had participated in the Legislative Council by-election in January 2016 without a problem. Moreover, he had signed the loyalty declaration and replied in email to the returning officer that he would not advocate Hong Kong's independence if he entered the legislature.

However, the returning officer ruled that Leung has not genuinely changed his pro-independence stance and has no intention to uphold the Basic Law. The returning officer wrote in the 12-page-long letter that (via Hong Kong Free Press):

Mr Leung has not provided sufficient reasons or evidence to prove that the media reports on his advocacy for ‘Hong Kong independence’ were not true.

I think [the statements made by] Mr. Leung mean that he will use whatever means to enter the Legislative Council, including claiming not to advocate Hong Kong independence anymore; if he becomes a legislator, he will continue to advocate and support Hong Kong independence.

The returning officer pointed to a post by Leung on Facebook, published on July 23, which read: “Basic Law? I have f**king embraced you and have embraced you for so f**king long.”

Leung has filed an “election petition” to the court questioning if the returning officer has abused her power in making the decision to disqualify him.

‘…if Hong Kong follows this path, what will our culture look like?’

The local legal sector has spoken out against the disqualifications. Around 30 barristers and lawyers signed onto a statement accusing the government of violating the Basic Law:

《基本法》第26條訂明，被選舉權是每一位香港公民的基本權利。《立法會條例》第40條僅要求參選人提交一份聲明確認擁護《基本法》，條例並無賦權選舉主任任何權力去查訊某位參選人的聲明是否所謂「真誠」，更遑論賦權選舉主任基於據稱某位參選人不是真誠地擁護《基本法》，但不循任何正當程序就作出一個主觀和政治決定去取消其參選資格。該等查訊和決定非但不合法，更是等同選舉主任在沒有法律基礎下進行政治審查和篩選。
這樣最終會破壞香港人對立法會和選舉過程的信心，亦會對香港長遠的穩定帶來負面影響。

According to the Basic Law Article 26, every Hong Kong citizen enjoys the right to be elected. Article 40 of the Legislative Council Election Ordinance only requires potential candidates to submit a declaration to confirm that s/he would uphold the Basic Law. The ordinance does not empower the returning officer to investigate whether the declaration is “sincere” or not. It never empowers the returning officer to make a subjective political decision to invalidate the candidacy based on hearsay that the potential candidate does not sincerely uphold the Basic Law without due procedure. The investigation and the decision are illegal. The returning officer has exercised political screening without any legal basis.

Apart from censoring candidates, the Electoral Affairs Commission is also censoring the candidates’ pamphlets. According to one of the candidates, Nathan Law, the commission has withheld the approval of their pamphlets, saying that they are seeking opinion from the secretary of justice. The “problematic” terms are:

自主未來 An autonomous future
自決主權治權 Self-determined sovereignty and governance
民主自決 Democratic self-determination
城巿自立 Self-sufficient city
自決運動 Self-determination movement
前途自決 Self-determined future
推動民間公投 Advocate universal suffrage
中國經濟壓力下難以自主 Under China's economic pressure, autonomy is at stake
國防外交外真正自治 Aside from military and diplomacy, a genuine self-governing entity

The political censorship not only affects those who are running in the Legislative Council election, but all Hong Kongers. Tse Kwun Dong, a writer from citizen media platform inmediahk.net, pointed out that under the current circumstances, anyone is in danger of being labeled a separatist and deprived of their political rights:

選委會的「港獨」證據可以來自各個方面，例如提出「自主」、「自決」也可能被指「港獨」。但這些本來都是正面的人生態度，哪有人會想自己的命運「他主」、「他決」呢？只有奴才才會這樣。可惜香港這樣下去，漸漸培養出一種怎樣的文化？

The Electoral Affairs Commission can gather all sorts of evidence to prove someone is pro-independence. For example, terms like “autonomy” and “self-determination” can be interpreted as “pro-Hong Kong independence.” But these terms represent a positive attitude towards one's future. Would anyone on earth want his or her fate to be determined by others? Only a lackey would think so. But if Hong Kong follows this path, what will our culture look like?

六四集會者常反對「一黨專政」，然而沒有黨，又哪有一國兩制？故此亦大可被指違反《基本法》，他日被剝奪各種權利。以文入罪，將無窮無盡，言論自由空間收窄。香港瀰漫的白色恐怖，日益嚴重。當然假如你剛好屬建制派，言論永遠正確，倒是樂得逍遙自在，無須擔心你的嘴巴和思想自由，你甚至並不希罕，可是你那些追求民主的下一代又如何呢？

For those who attend the annual June 4 vigil [for the 1989 Tiananmen Square massacre in Beijing] and shout the slogan “end to one-party dictatorship,” such a gesture could be viewed as violating “One Country, Two Systems” because “single-party dictatorship” is the basis of “One Country.” So this can be interpreted as a violation of the Basic Law and lead to you being deprived of all political rights. Incrimination for speech is an endless hunt, and space for freedom of expression keeps shrinking. “White terror” [meaning efforts to suppress political dissidents] is lingering in Hong Kong and becoming more and more serious. Of course, if you are pro-establishment and always side with the politically correct side, you are still free and happy as you are not worried nor care about freedom of thought. But have you thought about your children who want democracy?