Oathgate will hurt Hong Kong democracy

The oath crisis has given Beijing an opportunity to toughen its grip over Hong Kong.

Democratically-elected legislators Yau Wai-Ching and Baggio Leung (L) speak to media after High Court disqualified them from taking office in Hong Kong
Democratically-elected legislators Yau Wai-Ching and Baggio Leung speak to media after high court disqualified them from taking office in Hong Kong [Reuters]

September 5, 2016 was a good day for pro-democracy forces in Hong Kong. Their candidates won 30 out of the 70 seats in the Legislative Council, in the first elections for the city’s mini-parliament since the mass street protests for democracy – known as the Umbrella Movement – in 2014.

Among the winners were six young lawmakers who don’t fall into the traditional opposition camp, known as the pan-democrats. They are often described as “localists“, although they do differ on how self-determination should be approached.

These differences were on display when they swore in as lawmakers last month. Sixtus Leung Chung-hang and Yau Wai-ching, of the Youngspiration party, which emerged out of the Umbrella Movement protests, weren’t alone in using the occasion to make political points. But only they swore allegiance to the “Hong Kong nation” and draped themselves with a flag that said, “Hong Kong is NOT China”.

This set off an extraordinary chain of events – widely referred to as “oathgate” – which is still unfolding and is likely to hurt the democratic movement in Hong Kong.

A dangerous legal interpretation

After the botched oaths, the Hong Kong government filed a legal action to get the pair disqualified. Then, China’s National People’s Congress Standing Committee unilaterally issued an “interpretation” of the Basic Law – Hong Kong’s mini-constitution – which preempted the decision of the Hong Kong court.

Hong Kong has a separate legal system and practices common law, but China’s parliament retains the right to “interpret” the Basic Law in certain situations.

Apart from barring Yau and Leung from retaking their oaths, the interpretation says any public officer who intentionally deviates from the official wording or fails to take their oath in a “sincere or solemn” manner will be regarded as having declined to take it. Accordingly, they would be disqualified from office.

This means other pro-democracy lawmakers who used props or made political statements, before or after taking their oaths, are open to potential legal challenges and disqualification. Around a dozen lawmakers are already being challenged by pro-government petitioners.

Hong Kong's long and difficult struggle to fight for greater democracy and to defend its values just got a lot harder.


The interpretation also says that when Hong Kong’s public officials and legislators pledge allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China, they are, in fact, making a pledge to the People’s Republic of China and its Hong Kong Special Administrative Region.

According to Martin Lee, a veteran democrat, lawyer and a drafter of the Basic Law, this could mean Hong Kong’s public officers are subject to mainland laws under the Chinese constitution as well as to Hong Kong’s Basic Law.

The day before the interpretation was announced, thousands marched to protest what they saw as a blatant attempt to undermine Hong Kong’s judicial independence and overturn the results of a democratic election.

Not all protesters supported Youngspiration’s actions, some find Leung and Yau’s actions childish, unnecessarily provocative or even offensive. Others who I talked to feel they are walking into a trap, forced to side with pro-independence politicians they don’t endorse.

Few were surprised when judge Thomas Au Hing-cheung eventually ruled in favour of the government. He acknowledged Beijing’s interpretation was legally binding on the Hong Kong courts, but also stated his decision was based solely on the Basic Law and common law principles.

Youngspiration’s offices in the Legislative Council were cleared out and Leung, Yau and their staff banned from entering the building. They are appealing the ruling, and by-elections are on hold pending the appeal.

A welcome distraction

Hanging over all these events is the election for Hong Kong’s Chief Executive, which will take place in March next year. That election will hinge on the votes of a 1,200 member Election Committee – most of whom will take their instructions from Beijing.

The only candidate so far to declare an interest in running is a retired judge, Woo Kwok-hing, who is not considered to be a serious contender, while the two heavyweights waiting for Beijing’s green light to run are the deeply unpopular incumbent Chief Executive Leung Chun-ying and Financial Secretary John Tsang Chun-wah.

If there’s a winner in the oathgate affair, it’s Leung Chun-ying. He has shown Beijing he is willing and able to act decisively and swiftly to eradicate the voice of Hong Kong independence.

That the Youngspiration duo’s actions have failed to gain approval from, let alone inspire many Hongkongers, has weakened the opposition’s hand and undermined the fragile unity among its disparate components.

The maverick, pro-Beijing newspaper Sing Pao has even suggested Youngspiration is part of a false flag operation.

Whatever the case, oathgate has given pro-Beijing forces an excuse to whip up patriotic fervour, argue for patriotic education and for Leung Chun-ying to say Hong Kong should revisit Article 23 of the Basic Law. This provision states Hong Kong must draw up its own laws against treason, subversion and sedition, and other national security offences.

Leung’s critics accuse him of talking up the threat of Hong Kong independence to score points with Beijing, for whom sovereignty and territorial integrity are sacrosanct, and to deflect attention from his own troubles.

In September, he was embroiled in a scandal over government plans for a rural development project and incoming lawmakers were planning an inquiry into his alleged receipt of millions of dollars in undisclosed payments from an Australian engineering firm.

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Against the backdrop of Chinese President Xi Jinping’s sweeping crackdown on corruption, these scandals were thought to hurt Leung’s chances of getting Beijing’s blessing for a second term. Oathgate pushed these issues off the front pages and made him a frontrunner in the electoral race.

During an informal conversation, a pro-democracy community organiser told me that an official based at China’s Central Liaison Office in Hong Kong said the chances that Leung would be given the go-ahead to compete for a second term is now 80 percent, as opposed to 50 percent before oathgate.

In the end, it doesn’t matter whether the Youngspiration pair is part of an elaborate false flag operation, unwitting pawns in a much bigger power struggle or simply inexperienced politicians who made a strategic mistake – the end result is the same.

Hong Kong’s long and difficult struggle to fight for greater democracy and to defend its values just got a lot harder.

Yuen Chan is Senior Lecturer at the School of Journalism and Communication, Chinese University of Hong Kong.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.