(Note: This is an updated version of an article originally posted by Hong Kong Free Press on June 9, 2020, under the title: “Hong Kong National Security Law: What’s the Hurry? The Legislature Elections Are Coming”)
Hong Kong’s protest marching tradition is commonly dated from July 1, 2003. That was the day an estimated half-million people turned out to protest the imminent passage of a national security bill by the local legislature. The bill aimed to criminalize acts of treason, secession, sedition, subversion, and theft of state secrets, as well as to prohibit foreign political organizations from engaging in political activities here or maintaining ties with local Hong Kong counterparts.
Some legislators were alarmed by the size and angry mood of the crowd and withdrew their support for the bill. Lacking enough votes to pass, it has remained on the shelf ever since despite continuous calls from Beijing and Hong Kong loyalists to try again.
They have persisted because such legislation is mandated by Article 23 of Hong Kong’s Basic Law. This was drafted in the late 1980s to serve as Hong Kong’s constitution after its 1997 return to Chinese rule. But as it happened, the Basic Law draft was nearing completion in the spring of 1989, when protesters led by university students occupied Tiananmen Square in central Beijing with demands for democratic political reforms.
1989: TIANANMEN SQUARE
Hong Kong was riveted by the occupation of Tiananmen Square because people identified that cause with their own fears about the city’s post-1997 fate. Colonial Hong Kong had served as a buffer and refuge from the decades of upheaval associated with China’s Communist Party and its revolutionary attempts to transform Chinese society.
Hong Kong would soon be returning to a China still governed by that same party, but now the Chinese people themselves were demanding reforms. Hong Kong saw those demands as akin to their own concerns that had led to the growth of Hong Kong’s democracy movement in the 1980s. The British colonial authorities only allowed such agitation after Chinese leaders declared their intention to recover all of Hong Kong come 1997, when an old lease was due to expire on part of the territory.
China’s reform movement offered new hope that Hong Kong might be returning not to the old China, but to a new era where everyone would be striving toward the same goals. So, Hong Kongers were shocked by Beijing’s ominous declaration calling the Tiananmen Square occupation “counter–revolutionary” — the old term then still in use. It signified the most serious political crimes, meaning subversive of the established revolutionary order, as defined by party leaders at any given time.
The terms have since been updated, replaced by the most serious of modern post-revolutionary crimes: treason, subversion of state power, and the like. But they remain to be defined by party leaders at any given time.
On May 20, 1989, when the old term was used to justify Beijing’s declaration of martial law, an estimated 50,000 Hong Kongers braved typhoon force winds in a spontaneous demonstration outside the New China News Agency headquarters. It did double duty during the colonial era as a news organization and as Beijing’s representative office here.
The next day police estimated that half-a-million people turned out for what would be the first of three massive marches before and after the military crackdown that cleared Tiananmen Square on the night of June 3-4. These were the demonstrations that marked the start of Hong Kong’s protest march tradition: unprecedented numbers, political aims, China-focused, and always peaceful.
But Beijing added another response to the challenge of Tiananmen, directed specifically at Hong Kong. The finishing touches were just then being put on Hong Kong’s Basic Law in preparation for the return to Chinese rule. The only two democratic reform advocates among Hong Kong’s representatives on the Beijing-appointed Basic Law Drafting Committee had resigned in protest after June Fourth. Without Martin Lee and Szeto Wah, no one remained to protest when changes were made strengthening Article 23 in the final version of the Basic Law.
According to available drafts of the law as it was being written, an early version dated April 1988 said only that Hong Kong must prohibit by law any act intended to undermine national unity or subvert the Central People’s Government. A later version stated that Hong Kong must prohibit acts of treason, secession, sedition, and theft of state secrets.
It has always been assumed that the final version was provoked by Hong Kong’s popular identification of its concerns with those of the “counter-revolutionary” protesters in Tiananmen Square. The final Basic Law version, as promulgated in 1990, added the infinitely adaptable crimes of subversion and intervention by foreign outsiders to round out the list of treason, secession, sedition, and theft of state secrets.*
THE RIGHT TO REMEMBER THE PAST
Another of Hong Kong’s protest traditions also began at that time. A candlelight vigil commemorating those killed in Tiananmen Square has been held in Victoria Park on June Fourth every year since 1990 — that is, every year until now. This year’s vigil was banned with a convenient excuse: the all-clear has not yet been issued to remove restrictions on social gatherings imposed as a preventive measure during the corona flu virus epidemic The all-clear was actually due to expire on June Fourth but was extended by two weeks, ostensibly because of a slight uptick in the number of flu cases.
All kinds of arguments have been used over the years to try and put an end to the candlelight tradition without actually banning it. Hong Kong’s first post-1997 Chief Executive, Tung Chee-hwa, suggested it was time to set aside the “burden” of June Fourth.
But the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, organizer of the vigil since 1990, did not take the hint. Neither did anyone else. The authorities then toyed with the idea of shutting down the park for a lengthy period of repair and renovation. But nothing came of that idea either.
Among activists themselves there was debate about the wisdom of carrying on with a tradition that had been banned everywhere else in China and seemed to be souring Beijing’s mood on other important goals for Hong Kong like electoral reform. There was also some argument about the wisdom of continuing to use the same provocative “subversive” slogans year after year, especially the one calling for an “end to one-party dictatorship.” In recent years, patriotic vigilantes have taken to hurling abuse from a safe police-guarded distance outside the park — all to no avail.
More serious has been the “localist” challenge. As disillusionment set in about the possibility of ever achieving genuine democratic reform under Chinese rule, many especially among the younger generation have concluded that the June Fourth tradition has nothing to do with them. Its ideal was and remains a community of cross-border interests between democratic reform in China and in Hong Kong — a useless quest say young and not-so-young localist dissenters.They think it’s better to concentrate on saving a unique and separate Hong Kong than embracing the futility of reform under Communist Party rule.
Even so, despite all the headwinds, this year’s ban didn’t really work either. Apple Daily ran a banner headline on the day, urging people to gather in the park that evening as usual. It seemed like another “illegal assembly” in the making. But police allowed activists to occupy a side street, also as usual, to hand out pamphlets and posters, with a free candle this year for every passer-by.
Ultimately, so many people came for their candles and converged on the park — Apple Daily claimed 10,000 — that they were allowed in to remember the victims of Tiananmen Square. Only the formal ceremony was lacking. Police stood back, there was no violence, and the old “subversive” slogans were nowhere in sight — except on the reverse side of the organizer’s lead placard that read, as always: “end one-party rule.” **
THE “NUCLEAR OPTION” THIRTY YEARS LATER
The excuse for banning the vigil this year is especially convenient because the flu epidemic distracts from the real impending threat – now greater than ever before. June Fourth and subversive activities have again crossed paths, and this time it’s just as Hong Kong initially feared all those years ago.
Change in China has not allowed the political hopes of 1989 to materialize. Instead, the Communist Party’s way of thinking — about political reform and political security — has carried on despite the new post-revolutionary names. The old ideas are now being formally extended into Hong Kong itself with what is, in effect, yet another draft of Article 23.
Because Hong Kong democrats have succeeded in keeping the legislation at bay since 2003 – and since the Legislative Council election this coming September is, or was, expected to produce an even more defiant class of pro-democracy legislators — Beijing has decided to do what it has concluded Hong Kong will never do if left to itself. So, Beijing will fulfil the Article 23 mandate on Hong Kong’s behalf.
The National People Congress (NPC) meeting in Beijing has just passed a resolution authorizing the NPC Standing Committee to draft the law and impose it on Hong Kong by promulgation. The NPC vote at its May 28 meeting was 2,878 for the proposal and one against with six abstentions.
Article 18 and Annex Three of the Basic Law allow national laws to be applied in this way. But no one thought Beijing would use what people call the “nuclear option” to circumvent local resistance to Article 23.
The Annex Three short cut reflects Beijing’s sense of urgency, so much so that official accounts say there will be no time for a public consultation to help allay local fears. The job must be done by August, at the latest. The need for speed is allegedly due to fear of an imminent resurgence of violence as the epidemic recedes. The law will be tailor made for Hong Kong in its present state of insurgency, targeting especially anti-government protest violence and the influence of foreign forces.
The crimes listed are variations of those in the Basic Law itself and its earlier 1980s drafts. But since the new law is just now being written, no details are available. Its announced aim is to prevent, stop, and punish acts of secession, subversion of state power, terrorism, and external interference in Hong Kong.
For reasons so far known only to themselves, the central authorities continue to insist, as they have done for years, that Hong Kong resistance is all due to foreign meddling. According to this diagnosis, peace can only be restored by removing such interventions. How this is to be attempted will presumably become clear once the details of the law are known.
Also, according to official explanations, only a “very small minority” are involved in such behaviour, so most people have nothing to fear. In fact, the law and statements of reassurance could not be more ominous even if they carried the “counter-revolutionary” label.
The first point to note is the memory of times past. Major campaigns against class and political enemies during the old revolutionary era invariably began with the qualification that “only a very small minority” were actually guilty of whatever fault was being targeted. But in time, everyone was engulfed in the campaign with loyalist vigilantes looking in every work unit and neighborhood for similar kinds targets to identify and discredit.
That old revolutionary custom can be seen on almost any day in the pro-Beijing media here. Prominent democracy advocates like Martin Lee, former top civil servant Anson Chan, Apple Daily publisher Jimmy Lai, Civic Party leaders and legislators, Joshua Wong from the younger generation — all are routinely caricatured as villains and traitors for their lobbying trips to Washington and London.
Those who have taken refuge in Taiwan are portrayed as snakes and rats, slithering away to escape just punishment for their political sins. These call to mind the old “cattle ghosts and snake spirts” epithet used for labelling class and political enemies in campaigns gone by.
The specific crimes to be targeted — subversion of state power and secession — also raise alarm bells. In mainland criminal practice, subversion of state power can be used for almost any act of dissent or opposition. In Hong Kong, today, the pro-Beijing media routinely labels pro-democracy activists as separatists and independence advocates, even including those who reject the “localist” cause and have never called for independence.
The legal community is pleading for clarity, narrow and precise definitions of all the political charges that can be used in Hong Kong’s common law courts. But the crimes don’t need to be written into law to have the desired effect.
If the standards the new security crimes reflect are applied, for example, ahead of the coming September election, they can be used by vetting officers to justify the disqualification of just about every aspiring pro–democracy candidate who might want to contest. This would create as much havoc for candidates now, as the “self-determination” advocacy has done during the past two years while the 2014 disqualifications of the oath taking saga played themselves out in the courts and the special by-elections that followed.
If the truth can ever be known, it would probably reveal that the real reason for Beijing’s unseemly haste in pushing through its nuclear option is not fear of resurgent violence. A more immediate concern probably derives from the desire to scuttle the democratic plan for winning a 50% majority in the Legislative Council come September (April 27, 2020 post).
New loyalist appointments to head the Home Affairs Department seem well timed to further such an objective. The Home Affairs Department manages Hong Kong’s elections and civil servants from the department double as vetting officers at election time.
* These drafts are from The Hong Kong Basic Law, Ming K. Chan and David J. Clark, eds., HKU Press, 1991).
** POSTSCRIPT, 15 June:
Lest anyone conclude that it’s now all sweetness and light here, and that the Hong Kong government has finally come to its senses, it must be noted that punishments are in store.
On Thursday, June 11, the Hong Kong police informed Apple Daily publisher Jimmy Lai, and three core members of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, that they are to be prosecuted. The three are: Richard Tsoi, Lee Cheuk-yan, and Albert Ho. The charges will involve inciting others to participate in an illegal assembly. The next day, nine others were arrested and charged with the same offense (Apple Daily, June 13).. .
first draft: 6 June 2020