25 February 2020
Beijing-based scholar He Weifang feels 'patriotism' requirement for Hong Kong chief executive election candidates may not stand up to legal scrutiny. Photo:
Beijing-based scholar He Weifang feels 'patriotism' requirement for Hong Kong chief executive election candidates may not stand up to legal scrutiny. Photo:

‘Patriotism’ test: Does it have a legal leg to stand on?

Pan-democrats in Hong Kong are likely to stand firm on their demand for greater flexibility in the selection of candidates for the 2017 chief executive election, with the political climate heating up as Beijing prepares to announce its decision on reform proposals.

The Standing Committee of the National People’s Congress, China’s top legislative body, is expected to announce by this month-end a not-so-perfect package for the Hong Kong election which will basically ensure that only pre-approved candidates can join the race.

Mainland officials have already said that candidates should fulfill the “love the country” criterion, making it clear that there won’t be room for anyone who is not “patriotic”. 

Rules have been outlined to prevent some pan-democrats from qualifying for the contest, and some honchos in Beijing have also said that politicians joining the Hong Kong Alliance for Support of Patriotic Democratic Movements of China shouldn’t be qualified to participate in the election.

Democrats will argue that the package will go against Hong Kong’s core values and the Basic Law, with the “patriotic test” for candidates deemed the most controversial aspect.

The requirement, in fact, could be challenged legally. A Beijing-based scholar He Weifang has warned that such requirement may violate the Basic Law, the first time that a mainland academic has said so.

This should encourage pan-democrats to stand firm in their call for a true democratic electoral framework, rather than accept a Communist Party controlled electoral system.

In a Weibo posting on Sunday, He Weifang said it is difficult for Beijing to set rules or laws to require Hong Kong chief executive election contenders to “love China and love Hong Kong”, as the city’s Basic Law does not have any such provision.

If Beijing enforces such requirement, it may draw legal challenge in the future, he said. Meanwhile, the scholar also raised questions as to who has the right to define the “love China and love Hong Kong” criteria and what is the standard to judge one’s patriotism.

Article 47 of the Basic Law merely states that the “Chief Executive of the Hong Kong Special Administrative Region must be a person of integrity, dedicated to his or her duties.”

Meanwhile, China is also said to be using “national security” as an excuse to exclude some Hong Kong people from participating in the chief executive election. If there is such requirement, Beijing needs to list out how any contender failed to meet the Article 47 requirement.

Do mainland authorities have the ability to predict how people will behave after they take the top post, critics ask.

The article 47 issue provided pan-democrats a chance to attack Beijing officials last week, forcing the officials to give a concrete explanation on such verbal requirement.

The central government’s Hong Kong liaison office head, meanwhile, has criticized the pan-democrats, saying that the democrats are only concerned about their right to join the chief executive contest, rather than to push forward universal suffrage.

China has been stressing “rule by law”, aiming to show that its actions are in keeping with any other civilized state. However, the interpretation of law comes from the Communist Party, rather than an independent judiciary system.

Article 47 is a good example where Beijing changes the criteria from time to time to meet its own interests, rather than sincerely trying to ensure a true democratic election in Hong Kong.

Given the larger principle at stake, pan-democrats should put aside their own political interests and focus on the countering Beijing’s proposal with solid facts and arguments. That will help them secure the support of Hong Kong’s silent majority which seeks freedom, justice and fairness in society.

Related stories:

Should we wait another decade for universal suffrage?

How Beijing plans to eliminate democrats in 2017 election

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EJ Insight writer