Political top guns at odds over whether primary breaches lawMoney glitz | Maisy Mok 8 Jan 2021
Political heavyweights were at odds with each other over whether the pro-democracy primary can be considered an "unlawful means" of subverting the government - a crucial element in determining if their organizers breached the national security law.
Article 22 of the national security law states that a person who organizes, plans, commits or participates in certain acts "by force or threat of force or other unlawful means" with a view to subverting state power shall be guilty of an offense.
Those acts include overthrowing the Hong Kong government or seriously interfering its performance of duty and function.
National People's Congress Standing Committee member Tam Yiu-chung said on radio yesterday that although the primary was not an act of force, the "10-step mutual destruction scheme" put forward by legal scholar Benny Tai Yiu-ting as a whole constitutes an unlawful means.
The scheme aims to claim a majority of seats in the Legislative Council for the pro-democracy camp, with the goal of paralyzing the government.
The scheme also envisions lawmakers repeatedly vetoing the appropriation bill, forcing the resignation of the Chief Executive Carrie Lam Cheng Yuet-ngor.
It also predicts Beijing would declare a state of emergency in Hong Kong as chaos ensues.
"The whole process - organizing, planning, executing, and participating [in the scheme] should be considered unlawful means with a goal of subverting state power," he said.
Civic Party chairman Alan Leong Kah-kit disagreed, saying authorities were unable to explain what the "unlawful means" were.
He said the power of lawmakers to veto appropriations bills is stated in the Basic Law. The mini-constitution also states the chief executive should resign if the appropriation bill is vetoed twice - a check and balance between the executive and the legislature.
Executive Councillor and senior counsel Ronny Tong Ka-wah said holding and participating in a primary election is not illegal on its own. However, if it is one of the steps in an illegal plot, then that could be considered an intent to commit a crime.
Cheng Huan, a senior counsel, said an attempt to commit an indictable offense can be as serious as committing the actual offense in the common law. "For example if there is a conspiracy to bomb a building, you are guilty even if the bomb does not explode. So in this case, a crucial question is whether there is evidence of a conspiracy to subvert the government," Cheng said.