By Jason Y. Ng
The slow-motion disaster that is Oathgate has now spread from the pro-independence firebrands to the mainstream pro-democracy camp.
After the High Court disqualified localist lawmakers Yau Wai-ching and Baggio Leung nearly nine months ago, four more members of the Legislative Council (Legco) lost their jobs last Friday. Nathan Law, “Long Hair” Leung Kwok-hung, Lau Siu-lai and Edward Yiu had all strayed from the prescribed oath during the swearing-in ceremony. According to the supreme decision handed down by China’s National People’s Congress Standing Committee (NPCSC) in November, that minor infraction was enough for all of them to each get a pink slip.
If you are wondering how the loss of six seats has affected the balance of power in Hong Kong, you are not alone. The following FAQs are designed to answer that question and posit what is to come.
Walk me through the numbers before and after Oathgate?
There are a total of 70 seats in Legco, half of which are called “geographical constituencies” (GCs) and other half “functional constituencies” (FCs).
All 35 GCs are directly elected by a broad base of registered voters, which means GC lawmakers are mostly good folks who are accountable to their constituents. By contrast, most of the FCs (30 out of 35) are not democratically elected – they are handpicked by a small circle of committee members within a particular trade group, such as real estate, food and beverage, and retail. With the exception of a number of politically liberal groups like medical professionals, lawyers and social workers, the FC is stacked with pro-Beijing, pro-establishment businessmen who march in lockstep with the government.
Before Oathgate, the opposition held a total of 29 seats in Legco: 19 GCs and 10 FCs. Although the opposition was in the minority in Legco at large (29 out of 70) and within the FC (10 out of 35), they enjoyed a majority in the GC (19 out of 35). After losing six seats in two rounds of disqualification, the opposition is down to 23 seats: 14 GCs and 9 FCs. For the first time since the handover, they have lost their GC majority.
The following table summarises the impact of Oathgate to date:
The opposition has never enjoyed a majority in Legco even before Oathgate. What difference does losing six seats make?
Under the Basic Law, any bill introduced by the government (except for those relating to constitutional issues such as electoral reform or any amendment to the Basic Law) requires a simple majority vote in Legco. With or without Oathgate, the pro-establishment camp has enough votes to rubber stamp any government-led initiatives, such as an anti-subversion bill under Article 23 of the Basic Law or a funding proposal for the high-speed rail link to Shenzhen.
The only thing standing between us and bad government bills is the filibuster (which thwarted C.Y. Leung’s attempt in 2012 to create new ministerial positions to, critics say, enrich his political friends) and public outcry (which forced Tung Chee-hwa to withdraw the controversial anti-subversion bill in 2003).
While Oathgate has not affected the overall balance of power in Legco vis-à-vis government-proposed bills, it has tipped the balance by handing the GC majority to the pro-establishment camp.
Why does losing the GC majority matter?
The Basic Law contains a bizarre voting rule called the “separate vote count.” Unlike government-proposed bills that require a simple majority vote by all 70 Legco seats voting together, any bill introduced by an individual lawmaker must go through two rounds of voting: it must first be passed by the GC before being separately voted on by the FC.
Oathgate has created an opening for the pro-establishment camp to wreak havoc by proposing dangerous bills. Without its GC majority, the opposition has lost the ability to defeat bad bills introduced by their opponents. Going forward, any proposal floated by a lawmaker from the dark side will sail through both the GC and FC during the separate vote count.
One of the first things that the pro-establishment camp will do with its new GC majority is propose an amendment to voting procedures—a motion that only a lawmaker on the Committee on Rules of Procedure can initiate. The goal is to put an end to the filibuster by, for instance, putting a cap on how long or how many times a Legco member can speak when debating a bill or enabling the chairman to cut short the session and proceed to a vote. With both the GC and FC now controlled by Beijing loyalists, there is nothing to stop that amendment from being passed and the opposition can kiss the filibuster goodbye.
The filibuster is currently the opposition’s only effective weapon to delay or derail bad government bills such as funding requests for infrastructure projects that squander billions of taxpayer dollars. Thanks to Oathgate, we stand to lose the only checks and balances against the government led by a chief executive whom we play no part in choosing.
Does it mean the government can now pass an anti-subversion law without any resistance?
Remember, any bill introduced by the government, including the anti-subversion bill under Article 23 of the Basic Law, requires only a simple majority vote of all 70 LegCo members voting together. Since the pro-establishment has always enjoyed a majority in Legco at large, the opposition never has sufficient votes to block that bill from being passed whether or not they have those six seats.
As mentioned earlier, the only things stopping the pro-establishment camp from passing the much-dreaded bill are the filibuster – which is now in jeopardy – and public pressure. The latter remains an effective deterrence because the SAR government cannot afford a repeat of the political crisis that rattled the city in 2003.
Why don’t the disqualified lawmakers simply appeal the court rulings?
First, the chances that the High Court rulings will be reversed or set aside are slim. NPCSC decisions are meant to be the ultimate interpretation of the Basic Law and binding on all levels of local courts. As much as appellant court judges may be sympathetic to the opposition’s arguments, their hands are tied.
Second, appeals are costly. Already, the disqualified lawmakers owe millions in counsel and court fees, and because the annulment of their office is retroactive, they may be on the hook for millions more if the government goes after them for paid salaries and expense disbursements. For some of the ousted lawmakers, bankruptcy is the only way out.
Appeals are also time-consuming. It takes months, sometimes years, for a case to move through the court calendar. By the time a ruling is handed down, the pro-establishment will have already completed their handiwork and killed the filibuster by amending the Rules of Procedures using their new GC major.
Wouldn’t order be restored if voters send those lawmakers back in the Legco in the by-elections to fill the vacate seats?
One of the biggest hurdles facing the ousted lawmakers is their eligibility to run for Legco again. In August 2016, the Returning Officers -bureaucrats who have enormous power and discretion to decide whether an individual is eligible to run – banned several localist candidates from the Legco race on the basis that their declarations of allegiance to the SAR government were “insincere.” There is a high chance that the same political screening will be applied or even tightened in the upcoming by-election to prevent the ousted lawmakers from returning to Legco.
Moreover, any individual who has filed for bankruptcy or received a sentence of three months or more is subject to a five-year moratorium on a Legco run. Nathan Law and “Long Hair” Leung Kwok-hung, for instance, both face potentially stiff prison terms for their involvement in the occupy movement in 2014 as well as imminent bankruptcy for reasons explained earlier. That means the two will likely not be able to run again until 2024, a political eternity away.
Finally, the earliest that the by-elections can be held is this winter. Even if the unseated lawmakers somehow get over the above hurdles and win back their seats, they may be returning to a very different legislature. By then, the pro-establishment camp will have declawed the opposition by taking away the filibuster.
What can we do now? Are we doomed?
Things are expected to get much worse before they get better.
In the coming months, the High Court is expected to unseat two more lawmakers, Eddie Chu and Cheng Chung-tai, both of whom had embellished their oaths. The opposition will be mere seats away from losing the critical number in Legco to veto damaging amendments to the Basic Law. Once the pro-establishment camp secures a super-majority it has been salivating over for years to change the constitution as they see fit, the consequences can be catastrophic.
Article originally appeared in Hong Kong Free Press on 18 July 2017