立場新聞 Stand News

Lawmakers shall never depart from the people

2020/8/22 — 17:43

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— Writing In response to Mr Martin Lee’s article “24 eggs against a high wall” 

The decision to leave or to stay in the upcoming legislative council (LegCo) has created heated debate between the pro-democratic camp and the new generation of progressive activists. The incumbent pro-democracy legislators have expressed an inclination towards to stay in the LegCo as so to “resist from within”. Mr Martin Lee has written an article entitled “24 eggs against a high wall” on 20 August in Apple Daily showing his support to stay. Despite Mr Lee being an admirable and prominent figure in Hong Kong, I could not agree with his views. 

An elected lawmaker shall never depart from the people

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Mr Lee acknowledged the fact that he would “get jilted by young voters” and get little public support in polls for him to stay. Yet he would insist to stay in the LegCo out of his conscience if he were one of the 24 pro-democracy legislators facing the dilemma. 

It is unbelievable that this idea comes from someone who had been fighting for democracy in Hong Kong throughout his life. How could an elected legislator depart from the view of people who give you mandate? How could a lawmaker choose not to listen to the opinion of the people but accuse of them no longer supporting his political line? That is not how democracy works. 

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There is always a reason why the public opinion polls against them. A politician who fails to reflect on himself but to blame the people would only end up being left behind.  

Hong Kong has changed. The CCP’s ruling policy towards Hong Kong has changed. The governance of the HKSARG has fundamentally changed. The interpretation of the Basic Law Article 22 and definition of “high degree of autonomy” have also changed. Any opposition, filibustering, or even casting a “no” vote to the annual financial budget could be interpreted as “subversion” under the National Security Law.  The view of the public has thus changed accordingly. Most people of Hong Kong have awakened and realised the new “norm”. We realised that the room to resistance within LegCo is almost non-existent. However, his mindset still stays in the good old days in memorial of having rational debate with Jasper Tsang in the LegCo chamber. The scene has far gone. We have gone well beyond the point of no return. 

Acceptance of the appointment equates acceptance of the illegitimacy of the decision

In Mr Lee’s article, he wrote “actually, since the government postponed the LegCo election, it is not only the term of LegCo members but also voters’ authorization that has been extended.” 

I am so disappointed that Mr Lee, being top on the list of senior counsels in Hong Kong, a well-known expert in constitutional law, chose to turn a blind eye to the unconstitutionality of the upcoming LegCo. This argument is actually rationalizing the decision of postponement of election by the HKSARG. 

The threat of public health due to voting was exaggerated and the duration of postponement of election is disproportionately long. There is no reason why people could keep on going to work in very crowded MTR but could not go out to vote with same sufficient precautions. Therefore, the decision to postpone the election for a year is unlawful in the name of public health. Moreover, the length of each term of LegCo is clearly stated in the Basic Law. The decision made by the National People’s Congress Standing Committee (NPCSC) is a direct violation of the Basic Law. 

He ignored the very fact that the upcoming LegCo has no constitutional basis nor mandate from the public. The so-called legislative power is only based on the decision made by the NPCSC. To be accurate, the call not to continue the LegCo term is not about vacating a legally elected LegCo. It is not resignation en masse. It is about refusing the unconstitutional political appointment by the NPCSC. The decision to stay means accepting the legitimacy of the decision of postponing the election by Carrie Lam and the decision of NPCSC. The mandate would be no longer originated from the people but from the CCP. 

The so-called one-third veto power is plainly useless

Another argument to support all the 24 pro-democracy legislators should stay is to maintain the one-third veto power against some important bills, for example the constitutional reform bill or reprimand bill to expel certain legislators out of office. This argument does not stand as this theoretical veto power is simply useless, at least in the upcoming 1-year LegCo term. 

From the day the NPCSC decided to let all the 24 pro-democracy legislators keep their seats, they know it very well they would not bring these bills to the LegCo as there is simply no need to. 

It is redundant for them to expel any particular lawmaker they don’t like by passing a two-third majority resolution. They could simply bar them from entering the LegCo from the beginning, using the same rationale as the returning officer (RO), like “not faithfully uphold the Basic Law and the National Security Law”. Today in 2020, it is already an era of handpicking candidates by RO. It is an era of direct interference from the CCP in the name of national security. CCP has already fed up with following the long and inefficient procedures in the LegCo according to rules. They are the rules. 

Following the same logic, there is no need for any constitutional reform in the near future. The 1200-member selection committee for the election of Chief Executive could be handpicked in the same way. All the pro-democracy district councillors could be barred from joining the selection committee despite holding the vast majority in District Councils. 

In true democracy, this dilemma would not happen

Mr Lee tried to argue that opposition parties would try their utmost to safeguard their parliamentary seats in other democratic countries. However, the truth is that this kind of unlawful and unconstitutional postponement of general elections would not have ever happened in a truly democratic society in the first place. Even if the ruling party would like to perpetuate its rule by manipulating the election, it would certainly face tremendous pressure from all around. The government would face constitutional challenge and the independent judiciary could strike down the unconstitutional decision. As powerful as the President of the United States of America, President Trump cannot delay the general election on Nov 3 even he was trailing in the poll and the pandemic is thousands times more serious in USA than in Hong Kong. 

Concerning about the international repercussions, Mr Lee wrote “The international community may ask themselves: since these pro-democracy lawmakers voluntarily give up their seats, why should we stand with Hong Kong people and offend the Chinese Communist Party?”

The description of “voluntarily give up their seats” is misleading. As illustrated above, the seats are granted by the CCP but not from the mandate of the people. There is simply no election and no one can be sure that there would be one next year. This has to be distinguished from the general resignation from the 5 district constituencies resulting in de facto referendum a few years ago. This time, the constitutionality and the legality of the legislative body has totally lost. 

“When the pro-democracy camp splits, our political opponents are split”. I totally agree with the saying by Mr Lee. I wish Mr Lee could show the same courage to boycott and reject the legality of the provisional legislative council back in 1997. All the 24 pro-democracy legislators should stand with the people of Hong Kong, following public opinion poll and refuse to accept the political appointment from the NPCSC.

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