(This article was originally posted by Hong Kong Free Press under the title “The Real Struggle Begins: As Beijing Imposes Mainland Law on Hong Kong, How Will Democrats Adapt?”)
Legislative formalities were hastily concluded in Beijing late on the evening of June 30, and the law went into effect immediately. Most Hong Kongers saw it for the first time only the next morning. The date marked the 23rd anniversary of Hong Kong’s July 1, 1997 return to Chinese rule.
The anniversary also marked the first time in all the 23 years since 1997, that Hong Kong had to confront a reality its citizens have been struggling to keep at bay since the early 1980s, when Chinese leaders first announced their demand for Hong Kong’s return after 150 years of British colonial rule.
Agreements were reached and a Basic Law constitution was drafted for use after 1997, all against a backdrop of constant controversy and agitation. Hong Kong’s current democracy movement was born during this time and has been built on the struggles ignited at the prospect of retuning to a country still under Communist Party rule. Outside Hong Kong’s patriotic community, as it was called then, mainland dictatorship was regarded as a fearsome thing.
But Beijing made many promises and wrote them into a Basic Law that was to serve as Hong Kong’s constitution for at least the first 50 years after 1997. The promises were supposed to keep the most dangerous features of the mainland system at bay by guaranteeing all the basic Western-style democratic rights and freedoms.
British diplomat Percy Cradock was among the most vociferous in defending the agreements and promises when sceptics and critics said the British should have done more. The promises should have come with more specifics and guarantees. Catch phrases like “50 years with no change” and “one country, two systems” were not enough.
After the Chinese army cleared Tiananmen Square by force in 1989, followed by the sudden collapse of the Soviet Union, London belatedly decided it should have done more to prepare Hong Kongers to protect themselves via some sort of genuine self-government. Of all Britain’s colonies, it was a tradition that only Hong Kong had been denied.
The last British governor, Christopher Patten, took up the assignment with great relish and set about innovating with variations on Beijing’s carefully designed plans for an ever–so-slow progression toward some sort of controlled elections. The Basic Law promised elections but didn’t specify what kind.
Cradock was furious at the undoing of his diplomatic handiwork and one of his lines is remembered still. Beijing leaders may be thuggish dictators, Cradock was quoted as saying, but they were men of their word and could be trusted to do at least what they had promised in the Basic Law. (1)
The sceptics were right to worry, and Cradock was probably thinking only about guaranteeing an amicable sprint across the 1997 finish line. In any case, he did not foresee just how creative official Beijing could be in redefining the promises he thought were ironclad. Perhaps he also did not foresee in the early 1990s, that communist rule in China would not follow in its one-time mentor’s footsteps by sinking into oblivion.
THE NEW NATIONAL SECURITY LAW: Basic Provisions
Hong Kong had only a month to get used to the idea. Despite some prior signals that no one had paid much attention to, Beijing did not announce its plan for imminent passage of the new law until late May. Advance publicity promised it was being “tailor-made” for Hong Kong and only a miniscule number of deserving Hong Kongers would feel its sting.
The declared aim is to put things back on the right track, end the violence that ultimately overtook last year’s anti-extradition law protests, and return Hong Kong to business-as-usual. Additionally, the law seems calculated to try and write an end to Hong Kong’s democracy movement in its present form.
Rather than being tailor-made for Hong Kong, the law should be seen as a mainland law transposed for use here. Four crimes are targeted: secession, subversion, terrorism, and collusion with foreign countries or “external elements” that endanger national security.
Secession refers to undermining national unification by separating Hong Kong from, or altering its legal status as part of, the People’s Republic. The sentence upon conviction is life imprisonment or a fixed term of 10 years.
Subversion of state power is the most problematic because this crime is regularly used in China to contain and control almost any act of dissent. The Hong Kong version says the crime of subversion includes undermining the basic constitutional system of the People’s Republic or overthrowing its “body of central power,” or that of the Hong Kong government. Crimes of subverting state power also include interfering with, disrupting, or undermining the performance of the central or local Hong Kong governments.
This crime also includes attacking or damaging government premises and facilities. Maximum sentence for principal offenders: 10 years behind bars. Lesser punishments are prescribed for those who incite, assist, or aid and abet such crimes in any material way.
Terrorist activities seem to include just about every disruptive act committed in Hong Kong during last year’s protests. The crime of terrorism refers to organizing, planning, committing, participating in, or threatening to commit any of the designated acts that cause harm to society, in order to coerce either the central or local Hong Kong governments, or intimidate the public with the aim of pursuing a political agenda.
The designated acts include violence against persons, arson, sabotaging public transport, and sabotaging electronic control systems. Maximum penalty for maximum damage by principal offenders is life imprisonment.
Lesser punishments are prescribed for advocacy and incitement and anyone who aids or abets in ways that include training, information, funding, supplies, labour, or transport. Perhaps this last is a warning to sympathetic taxi drivers who spirited protesters out of harm’s way ahead of advancing police formations during last year’s protests.
Collusion. The terrorism provisions are comprehensive but at least they are specific. The crime of colluding with foreign countries or “external elements” seems to include potentially anything and everything.
The crime refers to anyone who “steals, spies, obtains with payment, or unlawfully provides state secrets or intelligence concerning national security“ to a foreign country, organization, or individual outside China, including Hong Kong
The crime also refers to anyone who conspires with foreigners in whatever capacity, receives instructions, funding, or support from them. Such individuals shall be guilty if they commit the following offenses: waging war against China; disrupting laws and policies of the Hong Kong government; rigging or undermining a Hong Kong election; engaging in hostile actions against China including Hong Kong; and “provoking by unlawful means hatred among Hong Kong residents” toward the national or local Hong Kong governments.
Those convicted of such national security crimes shall be disqualified as candidates for elective office. Officials convicted of such crimes shall be removed from office. A non-permanent Hong Kong resident accused such crimes, whether prosecuted or not, may be subject to deportation.
The principle of extraterritoriality also applies. Hong Kong citizens themselves can run but they cannot hide. Indeed, anyone anywhere suspected of committing such crimes may be prosecuted, whether or not they are Hong Kong citizens.
A LIGHTER TOUCH: Protections Under the Law
Mainland laws by convention are not retroactive unless they say so. Article 39 states specifically that this law “shall apply to acts committed after its entry into force.”
Article 4 promises that “human rights shall be respected and protected in safeguarding national security in Hong Kong.”
Article 5 guarantees against double jeopardy. A person is innocent until proven guilty by a “judicial body.” The “rule of law” shall prevail.
TWO-SYSTEMS, ONE SECURITY TRACK
Beijing officials are still making promises. All rights and freedoms protected, but who will believe them now? Only the tiniest fraction of Hong Kongers will be targeted, proclaimed the advance publicity. But sure enough, just as during all the mainland’s revolutionary struggle campaigns that began with such assurances in days gone by, no sooner are targets identified than zealous local guardians of political propriety rush to identify suspects everywhere.
Titles by activist Joshua Wong, Civic Party legislator Tanya Chan, and localist author Horace Chin have suddenly disappeared from Hong Kong’s public library system. They have been removed, explain the guardians, pending review for suspect content following promulgation of the new security law.
Evidently, it is now illegal to publish books that promote the four types of crime: secession, subversion, terrorism, and collusion. But since definitions have yet to be formalized, how will librarians know whether or not the books are promoting or only describing?
A teenager was among those arrested on July First for carrying a banner with the popular slogan “Liberate Hong Kong, Revolution of Our Time.” The arrests were made on grounds that the banners violated the new law prohibiting secession. Later that day, the Hong Kong government issued an explanation saying the slogan had separatist connotations.
In mainland parlance, “liberate” signifies among other things the victory of Chinese communism, as in the People’s Liberation Army that liberated all of China in 1949. In that context, it refers to the revolutionary overthrow of the old order.
But the slogan has actually been mistranslated here. It doesn’t even say “liberate” in Chinese. The characters mean only “restore” or “reclaim.” Those meaning “liberate” are entirely different. Banners are usually bilingual, but the chants are almost always in Chinese
This signature rallying cry adopted by protesters last year was created in 2016 by the election campaign team of Edward Leung Tin-kei. It is not a call for independence but means something more like “restore” or “reclaim,” with Hong Kong’s core values understood as being different from those of the mainland. Leung himself is now serving a six-year prison sentence for his role in leading a one-night riot in 2016.
So, Hong Kong’s legal system already had enough ways to punish people with such edgy ideas. And by now there must be hundreds–of–thousands of Hong Kongers in possession of the slogan on banners and placards. Lucky the new law is not retroactive. But when the police come around looking for suspect materials — as they now can, in some cases, even without a court order … how will we prove we collected them before the law was passed, and why we chose to keep them afterward?
All these are nevertheless minor details compared to the comprehensive enforcement mechanisms mandated by the new law. During the past year, mainland sources have been talking about strengthening Hong Kong “enforcement mechanisms” and no one understood quite what was meant. Now everyone does.
A mainland public security office has just been set up here to oversee all matters related to implementing the new law. Its director is Zheng Yanxiong, who is reputedly a hardliner and looks the part. Zheng also has a reputation for handling disruptive situations in neighbouring Guangdong province and knows how to deal with Hong Kong’s irreverent media.
The Office for Safeguarding National Security of the Central People’s Government will oversee all matters related to enforcing the law, analysing developments, and providing proposals on major strategies and policies. The office will oversee, guide, coordinate with and provide support to the Hong Kong government, as well as collect and analyse intelligence concerning national security.
Its mandate includes strengthening the management of foreign government representatives and international organizations here, as well as non-government organizations and foreign news organizations. This office will exercise jurisdiction over major complex cases that endanger national security. Such cases will be tried in China under mainland law, rather than by local courts here in Hong Kong.
Last year’s protests were sparked by the issue of extradition to China for trial by courts there under mainland law. As if in deliberate payback, the new security law mandates the very same – extradition to China for trial under mainland law.
For trials here in Hong Kong, Chief Executive Carrie Lam has just appointed six judges who will preside over local national security cases. The appointments violate local practice and convention that aims to safeguard judicial independence.
The logic of streamlining the central government’s bureaucratic hierarchy responsible for Hong Kong affairs now comes into sharper focus. Since it was not explained at the time, early this year, no one knew what it might mean (Feb. 24, 2020 post). The new man appointed in January to head Beijing’s representative Liaison Office here was Luo Huining, an experienced provincial-level party leader with a reputation for tackling tough assignments but no Hong Kong experience.
Luo now sits as Beijing’s advisor on the Hong Kong government’s new Committee for Safeguarding National Security, chaired by Hong Kong Chief Executive Carrie Lam. At its first meeting on July 6, the committee adopted several new regulations to help the police carry out their added responsibilities and assist them in their investigations.
LOOKING F0RWARD FROM PAST EXPERIENCE
Now that the worst has happened, what next? Can Hong Kong’s democracy movement survive in a mainland climate under mainland rules? The veterans have grown accustomed to disappointments and setbacks. They remember the long years of struggle that began in the early 1980s, when preparations for 1997 began.
Governor Patten’s reform project was an early high point. But it actually began the year before he arrived. Hong Kong’s first ever universal suffrage election — for a few seats in the old colonial–style appointed Legislative Council — marked a surprise victory when the reformers swept the field. They became the centre of attention as Patten proceeded with his electoral innovations, and then sank into near oblivion during the five years that followed.
Beijing proceeded with its own plans, immediately dismantled Patten’s handiwork, and the results are with Hong Kong still. Pro-democracy reformers, despite their majority support among Hong Kong voters, nevertheless found themselves suddenly recast as the “opposition” in a Legislative Council where Beijing’s convoluted designs kept democrats confined as a powerless permeant minority.
Martin Lee’s dominant Democratic Party began to fray under the strain. “Young Turks,” as radicals were called then, rebelled. They quit the party saying it was better to take their message to the streets than waste time on the Legislative Council’s debate club democracy.
The streets may have been more exciting but the hazards of political life there were almost as great Before long, a multiplicity of groups were vying for the same voter base, each intent on building their own at the expense of the others.
Meanwhile, their unified disciplined loyalist and pro-establishment opponents captured majorities on all the neighbourhood-level District Councils. Democrats were left to lament their loses even in the Legislative Council and agitate in vain for the Basic Law’s promises about the wholly elected Hong Kong government they once hoped might serve as a model for all China.
But especially those first five post–1997 years that democrats spent in the wilderness are instructive in contemplating a future where they must now adapt to the new Beijing–mandated order if they are to survive at all.
After 1997, the reform movement did not revive until 2003, when imminent passage of the Basic Law’s Article 23 mandate for national security legislation brought half-a-million people back onto the streets.
The first time they responded in this way was in 1989, when massive numbers of Hong Kongers took to the streets in a spontaneous upsurge of support for protesters in Beijing’s Tiananmen Square (June 9, 2020 post)
It was the Hong Kong public that came out essentially on its own initiative and said “no” to the 2003 legislation. The politicians then were secondary and left to themselves would probably not have had the will to organize such resistance.
Now those same Article 23 bans against secession, sedition, subversion, and all the rest have become the new reality. No one knows how it will be enforced because no one is able to define precisely what secession and subversion will mean in actual practice. Court judgements will make those decisions on guidance from Beijing mentors.
Yet so popular had new activist slogans become that all the main democratic parties and candidates were advocating “self-determination” ahead of the last, 2016, Legislative Council election.
Edward Leung with his “revolution of our times” slogan was deemed too radical at the time and was among the few candidates barred from participating in that contest. Mainland sources have since persisted in taring all the new activist ideas, however called, with the same “separatist” brush.
Now election platforms must be redesigned and redrafted for the coming 2020 election in September when the DQ spectre of “disqualification” hangs over all. New ways of “reclaiming” Hong Kong must be found. But they are not likely to be either forgotten or rejected.
(1) Percy Cradock, Experiences of China (John Murray, 1994); Pepper, Keeping Democracy at Bay (Rowman and Littlefield, 2007/8), pp. 240-41, 250.
Posted by Suzanne Pepper on July 13, 2020