Hong Kong leader Carrie Lam Cheng Yuet-ngor has dismissed suggestions there is a conflict of interest in her chairing the city’s committee for safeguarding national security, now tasked with helping vet aspiring election candidates.
And Lam moved to assuage concerns it would allow the chief executive to single-handedly disqualify political hopefuls or give themselves a head start in future races for the top job.
Questions surfaced on Tuesday when it was revealed the Lam-chaired security body would be providing recommendations to the city’s newly created candidate vetting committee after studying fact-finding reports supplied by the police national security unit.
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The committee, comprising principal officials in government, will have the power to decide who can run in elections under the sweeping overhaul of the city’s political system approved in Beijing on Tuesday.
“I don’t think the mere fact the chief executive is the chairman of the national committee will single-handedly decide who is or who is not eligible,” Lam said. “The public can judge whether the decision has been made rightly or wrongly.”
She also said concerns that her principal officials would nominate her regardless were “exaggerated”, given their decisions would also be scrutinised by the public.
“The [chief executive] candidate will not be a nobody in Hong Kong. Whatever committee, whatever principal officials, it is not up to them to arbitrarily decide whether the CE candidate does not fulfil the requirements of pledging allegiance to [Hong Kong] or upholding the Basic Law,” she said.
Lam also revealed that the new vetting committee would receive advice from the police’s national security unit, and that intelligence would be kept secret and not made public in determining someone’s eligibility to be a candidate.
Nor could the committee’s decision be subject to judicial challenge, sparking questions from legal scholars about the transparency and fairness of the process.
One legal scholar noted the new arrangement would transfer the traditional role of judges, who had ruled in cases that required them to decide whether a candidate would uphold the Basic Law, entirely to law enforcement officials.
But Lam shrugged off suggestions that the set-up would allow police to meddle in politics, and while they were best placed to give advice and intelligence on candidates, they would only be involved in “fact-finding”.
Article 17 of the national security law imposed by Beijing last year stated that they could conduct a “national security review”, she said.
Human rights law scholar Johannes Chan Mun-man, from the University of Hong Kong, was not convinced though.
“If a person is denied the [fundamental] right to stand for election, why should he or she be shut out from having recourse to an independent and impartial judiciary?” he said.
The proposal, unveiled on Tuesday, was unanimously endorsed by the National People’s Congress Standing Committee, after a two-day meeting in the Chinese capital.
Among other things, the new framework drastically reduced the directly elected seats in the Legislative Council to one-fifth, and put in place the vetting mechanism, which critics said would place a great hurdle for opposition candidates hoping to run.
Albert Chen Hung-yee, a legal scholar at HKU specialising in the intertwining of Hong Kong and mainland legal systems, said that because the national security unit would be tasked with gathering intelligence, and any decision handed to the vetting committee would pass through the committee for safeguarding national security, they could not be subject to legal challenges under national security legislation.
Michael Davis, a former human rights law scholar at HKU, doubted whether the lack of avenues for redress would be in line with the city’s Article 21 of the Bill of Rights, which states the people should be allowed to take part in an election without “unreasonable restrictions”.
The global fellow at the Woodrow Wilson International Centre in Washington also described the non-disclosure of reasons as “extremely problematic”.
Simon Young Ngai-man, who specialises in constitutional law at HKU, said whether the new mechanism could replace the city’s long-standing way of resolving electoral disputes by taking matters to court, depended on the leeway the new vetting committee was given.
If the committee could make an independent decision after receiving advice from the national security branches, he said, they would still be considered as upholding a certain level of independence, though he expected a layer of appeal mechanism to be introduced.
Senior counsel and Executive Council member Ronny Tong Ka-wah, however, said Beijing’s decision still left room for legal challenges in Hong Kong. He said candidates could lodge an election petition on the grounds of procedural fairness, for instance, so long as the case did not touch on the advice provided by national security officers.
Chen agreed, and said the court could still rule on challenges surrounding the Legislative Council Ordinance, “such as whether the candidate has lived in Hong Kong long enough”.