Feb 9th 2018, Economist
THEY have become a familiar sight standing on courtroom steps. Since their pro-democracy protests in 2014, the young leaders of the Umbrella Movement¡XJoshua Wong, Nathan Law and Alex Chow¡Xhave bobbed in and out of court, and sometimes into prison. This week they appeared again, after an appeal overturned controversial custodial sentences handed down last year. But their mood was sombre. ¡§Our hearts are heavy,¡¨ said Mr Law. ¡§We walk free but Hong Kong¡¦s democracy has lost a battle.¡¨
In July 2016 the trio was found guilty of breaking into a government compound and of inciting others to follow suit. A magistrate sentenced Mr Wong and Mr Law to community service and Mr Chow to a three-week stint in prison, suspended for a year. The government objected that these punishments were too lenient to deter others. Last year, after a review, the Court of Appeal upped the punishment to between six and eight months in prison and outlined stricter guidelines for such cases. The men were jailed but then released on bail, awaiting appeal.
On February 6th Hong Kong¡¦s Court of Final Appeal found no precedent for custodial sentences and so quashed them. But the judges nonetheless said that they agreed with the lower court¡¦s stricter sentencing guidelines in principle, even though they should not have been applied retroactively. And they disagreed with the defendants¡¦ plea for leniency on the grounds of civil disobedience. Hence Mr Law¡¦s despondency.
Concern that Hong Kong¡¦s enthusiastic culture of protest may be dampened by the court¡¦s ruling is real. But activists espousing looser ties with China face a more immediate challenge. On March 11th by-elections will be fought to fill four seats left vacant by the disqualification of members of the territory¡¦s Legislative Council, known as Legco, who had expressed such views. (Two more seats remain empty while the ousted politicians appeal.)
The three men¡¦s custodial sentences would have made them ineligible to run for public office for five years. Though nominations for this round of elections have closed, the overturning of the sentences should allow them to run in future elections. (For Mr Wong, who was jailed and bailed for a different crime in January, the ban will stand.) Whether Mr Law, who was elected as a legislator in 2016, would in practice be allowed to run again is unclear, since he was one of the six legislators elected in 2016 but disqualified in 2017. Precedent suggests he may be able to, since Edward Yiu, a legislator disqualified at the same time as Mr Law, has been cleared to stand again.
But another ruling a few days earlier may have a greater bearing. Agnes Chow, a 21-year-old member of Demosisto, the political party founded by Mr Wong and Mr Law, was nominated to contest the seat left empty by Mr Law. But on January 27th her nomination was found by a civil servant to be invalid, since her association with that party, which advocates ¡§self-determination¡¨, meant that she could not fulfil a required promise to uphold the territory¡¦s mini-constitution, known as the Basic Law, which defines Hong Kong as an ¡§inalienable part of China¡¨.
In the past, candidates calling for independence have been disqualified, but ¡§self-determination¡¨ is a much woollier concept that could involve China retaining sovereignty over Hong Kong. Both Hong Kong¡¦s and China¡¦s governments, however, were furious in 2016 when pro-independence politicians were elected to Legco, and seem ill-inclined to delve into the nuance of the dissenters¡¦ views.
Ms Chow¡¦s disqualification drew criticism from Britain, Canada and the European Union. Most damningly, two heavyweight backers of the government in Beijing ventured that the rules are unclear. One of them, Jasper Tsang Yok-sing, a former Legco president, said that by banning the candidates the returning officers may have ¡§exceeded the expected scope of their duties¡¨, which are mainly administrative. And Hong Kong¡¦s chief executive, Carrie Lam, a Beijing loyalist, said the government would clarify the ¡§very clear¡¨ rules if necessary. Speculation about how unwelcome candidates may be disqualified in future is rife, as ideology wrestles with constitutionality.