Hong Kong Autonomy Further Eroded Under Cover of Pandemic

Posted by | Apr 23, 2020

On Monday, the Hong Kong government announced a 14-day extension on disease control restrictions including a ban on public gatherings of more than four people. The extension is backed by medical experts to safeguard the city’s progress against the ongoing COVID-19 pandemic, though even one advocate of “hardline” measures has endorsed relaxation early next month if new case numbers stay low. A number of recent developments have aroused suspicions of restrictions being used as political cover, allowing officials to take inflammatory actions without immediately rekindling last year’s anti-extradition, pro-democracy mass protests. These include increasingly assertive claims by mainland authorities of the right to “supervise” Hong Kong’s internal affairs; a subsequent constitutional debate in which the territory’s government appeared to reverse its position in favor of Beijing’s; and the arrests of 15 veteran pro-democrats over their relatively minor roles in the protests last year.

The initial trigger for last year’s demonstrations was proposed legislation allowing extradition to mainland China, among other places, which protesters feared would fatally undermine the territory’s treasured but increasingly imperiled autonomy. Another threat loomed last week with claims by Beijing’s Liaison Office that it is not subject to a bar on interference by mainland government departments laid out in Hong Kong’s foundational Basic Law. At The Washington Post on Tuesday Gerry Shih reported on the resulting constitutional crisis:

Long-standing questions about the efficacy of the autonomy provision, known as Article 22 of the Basic Law, were sharpened after Beijing’s liaison office said Friday it was not bound by the noninterference law and was legally permitted as a supervisory body to voice its criticism of legislative affairs in Hong Kong, including a filibuster by opposition lawmakers.

[…] Beijing underscored its claim that it holds “supervisory” powers over Hong Kong and said the central government “must intervene” if a situation arose that harmed the country and Hong Kong.

[…] The Hong Kong Bar Association issued a statement Monday saying there was no provision in the Basic Law giving central Chinese authorities “supervision” over affairs that the Hong Kong government administers on its own.

Statements from Beijing and Hong Kong officials on “such a highly important legal issue have caused deep public unease,” the lawyers’ group said. [Source]

SCMP’s Gary Cheung and Natalie Wong described the Hong Kong government’s U-turn on the Liaison Office’s claims:

Writing on his Facebook page on Monday, mainland affairs chief Patrick Nip Tak-kuen said: “There were errors in a press release issued on Saturday afternoon on the remarks made by the Hong Kong and Macau Office and the Liaison Office, and releases needed to be issued again to make corrections and explanations, and there were confusion and misunderstanding. I deeply regret that!”

[…] The flip-flop has left the Hong Kong government in an awkward position, as it has long held that the liaison office fell under Article 22.

[…] Simon Young, a constitutional law expert at the University of Hong Kong, agreed the liaison office had a distinct status and fell outside the scope of Article 22 because of its long-standing presence in the city.

“But it does not mean the office can do and say whatever it likes in Hong Kong,” he said. [Source]

Nip was reassigned on Wednesday as part of a reshuffle which the territorial government said was “completely and entirely unrelated” to the Liaison Office affair.

The SCMP article also quoted Tam Yiu-chung, “an architect of the Basic Law [and] Hong Kong’s sole representative on the National People’s Congress Standing Committee,” who said that “the controversy arises from many Hong Kong people interpreting the clauses of the Basic Law from … a literal interpretation of the text.” In a post on the HKU Legal Scholarship Blog, on the other hand, the university’s Chair of Public Law Johannes Chan compared the Liaison Office’s stance to that of Humpty Dumpty in Lewis Carroll’s “Through the Looking Glass”: “‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less.'”

The reason why the law is respected is because the interpretation of the law is a rational process. The meaning of the law does not change with political climate or expediency.

The meaning of Article 22 of the Basic Law is very clear. Art 22(1) states that “no department of the Central People’s Government and no province, autonomous region, or municipality directly under the Central Government may interfere in the affairs which the Hong Kong Special Administrative Region administers on its own in accordance with this Law.” It refers to “departments of the Central People’s Government”, not some departments of the Central People’s Government. The purpose is clear. No department of the Central People’s Government shall be permitted to meddle in affairs which are within the internal autonomy of the HKSAR. Yet under the interpretation of the Liaison Office of the Central People’s Government in the Hong Kong SAR (“Liaison Office”), the phrase means “no department of the Central People’s government except some departments.” This is clearly contrary to the plain meaning and purpose of Article 22. […]

[…] It would be very surprising if [the Liaison Office] were to play a role of supervising the implementation of the Basic Law in Hong Kong that such an important purpose is not mentioned at all in its terms of reference for over 20 years since the establishment of the office in Hong Kong. The only logical conclusion is that this is not its role. Its role is one of coordination and liaison, not of power or of supervising the implementation of the Basic Law in Hong Kong, let alone becoming a shadow or “not so shadowed” government in Hong Kong. [Source]

Amid this constitutional dispute, Hong Kong police arrested 15 prominent veteran pro-democracy figures on Saturday, including politician and lawyer Martin Lee, nicknamed Hong Kong’s “Father of Democracy.” From The Economist:

Last year’s protests mainly involved young people acting without any formal leadership. This made the arrest of people such as Mr Lee (pictured) all the more striking. He is 81 and a moderate by comparison with many of those who demonstrated last year. But he has long been despised by the leadership in Beijing for his outspoken criticism of China’s dictatorial politics. After being freed on bail, Mr Lee said he was proud. “Over the months and years, I’ve felt bad to see so many outstanding youngsters being arrested and prosecuted, but I was not charged,” he told reporters.

Another of those arrested, Margaret Ng, also expressed defiance when she was released on bail. “When the rule of law is in a crisis, shall we walk out or fight on?” the 72-year-old barrister and former legislator asked. It was, she said, the first time she had been arrested. Others included Jimmy Lai, the wealthy founder of Next Media and publisher of Apple Daily, a pro-democracy tabloid; Figo Chan, a co-leader of the Civil Human Rights Front, which organised large and peaceful protests last year; Leung Yiu-chung, a legislator; Lee Cheuk-yan, a union leader; Leung Kwok-hung, a social activist commonly known as “Long Hair”; and several other former lawmakers.

[…] Under Hong Kong’s colonial-era Public Order Ordinance, any gathering of more than three people without police approval can be deemed “unauthorised”. Attendees risk three years in prison. Encouraging others to take part in such an assembly can incur a sentence of up to five years. Between June and December last year as many as 2m Hong Kongers (out of a total population of 7.5m) are estimated to have taken part in such demonstrations after police stopped giving permission for rallies. In response to suggestions that the 15 just arrested may have been singled out unfairly, Hong Kong’s security bureau insisted that in the territory, “everyone is equal before the law”. But this round-up appears to have targeted famous figures for maximum deterrent effect. Protests have died down since January, not least as a result of social-distancing measures relating to COVID-19. But the authorities worry about the possibility of renewed unrest as normal life resumes (Hong Kong has managed to avoid a crippling surge of coronavirus cases). [Source]

In an op-ed at The Washington Post on Tuesday, Martin Lee described his and the other arrests as “part of a larger plan”:

Repression by Beijing has drawn millions of Hong Kong people into the streets and to vote for pro-democracy candidates in last November’s district council election. Now, Beijing has appointed hard-liner Luo Huining to run its local arm, the China Liaison Office. He used a video address to demand that Hong Kong implement “national security” legislation “as soon as possible.”

Earlier efforts to pass this legislation, known as Article 23, led to massive protests in 2003, before the bill was withdrawn. The bill would outlaw “sedition, subversion and the theft of state secrets.” These vague standards are designed to protect the Chinese Communist Party and undermine core freedoms of Hong Kong, such as freedoms of religion, assembly and the press — including the reporting of pandemics that embarrass Beijing.

[…] Hong Kong people now face two plagues from China: the coronavirus and attacks on our most basic human rights. We can all hope a vaccine is soon developed for the coronavirus. But once Hong Kong’s human rights and rule of law are rolled back, the fatal virus of authoritarian rule will be here to stay. [Source]

Not all arrests over the protests are a matter of political repression—also this week, two teenaged protesters were charged over the death of a street cleaner hit by a brick during a confrontation last November. But there is an extreme disparity between arrests for even marginal, non-violent involvement in the protests and the apparently total lack of accountability for the widely corroborated acts of police violence with which they were met:

Human Rights Watch commented on Monday:

Since June 2019, the authorities have arrested nearly 8,000 demonstrators, yet they have failed to prosecute any police officers credibly alleged to have used excessive force. Some judges have expressed concerns about political influence in the judiciary. Government restrictions imposed on candidates and political parties will severely compromise the Legislative Council elections slated for September. Over half of current pro-democracy LegCo members already face criminal charges. Since 2016, Beijing and Hong Kong authorities have disqualified pro-democracy figures from running for seats on LegCo or unseated them after they were elected. [Source]

Commenting on his blog, NYU legal scholar Jerome Cohen labeled the arrests “a stunning advance toward the Chinese Government’s demolition of One Country, Two Systems in fact, if not in name.”

The people of Hong Kong are very unlikely to accept this further erosion of “the high degree of autonomy” that they were promised when the PRC and the UK concluded the Joint Declaration on Hong Kong’s future in 1984 and China enacted the Basic Law for Hong Kong in 1990.

This week’s actions may well be an attempt by Beijing to provoke a broad popular reaction that will then provide an excuse not only to finally bulldoze success passing controversial national security legislation in HK under Basic Law Article 23, but also to call off the crucial September election scheduled for HK’s Legislative Council. Indeed, another Art. 23 campaign is sure to elicit an even stronger reaction than we saw last year in response to PRC efforts to pass legislation authorizing extradition/rendition of alleged criminal suspects for “justice” on the Mainland. Unless, of course, HKG restrictions regarding Covid-19 inhibit people from going into the streets, which is what the PRC is surely counting on. [Source]

The restrictions’ utility as cover for potentially inflammatory official actions has been widely noted. From Verna Yu at The Guardian:

“While China was brought to its knees by Covid-19, [president] Xi Jinping held back from implementing the hardline on Hong Kong, but now that China has come out of it while the western democracies are on their knees and dependent on China for personal protective equipment, what better time than now to take the offensive?” said Prof Steve Tsang, director of the SOAS China Institute in London.

“Bolster authoritarian control amid the pandemic – this is Beijing’s thinking,” said [former Tsinghua political scientist Wu Qiang].

Analysts warn that China’s repression of Hong Kong will only intensify in the near future, particularly in the run-up to the September legislature election. Some also believe China wants to pass the article 23 legislation before the election, which might see the democrats claiming a majority amid widespread discontent aimed at the government.

“After the immediate ‘shock and awe’ effect, Beijing will turn to the legislative council and the September election,” said Kenneth Chan, political scientist at the Hong Kong Baptist University. Draconian anti-subversion laws passed under article 23 “would give the authorities new powers to persecute and purge the pro-democracy leaders and activists before the legislative council election in September,” he said.

To ensure that the outcomes of the election are controlled, Chan expected that Beijing may seek to disqualify some democrats, or cancel the election altogether and appoint a “provisional Legislative Council” filled with pro-establishment figures. [Source]

From Helen Davidson, also at The Guardian:

The arrest of Lee Cheuk Yan, a veteran politician and activist, and 14 other high-profile people on Saturday, came amid a run of acts by authorities seen as alarming intrusions on Hong Kong’s autonomy, ahead of elections in September.

Lee told the Guardian the arrests – which were condemned by the UK, US and Australian governments and human rights groups – would have seen people “pouring out onto the street to protest” in normal times.

“But… Hong Kong people are very alert to the concern of infection, so they are using the chance of the pandemic,” he said. “This is a golden opportunity for them.”

He said Saturday’s arrests were aimed at ensuring pro-Beijing candidates won a majority at September’s Legislative Council elections, and could push through “more stringent or draconian laws for the future”.

He said candidates couldn’t run if they had been sentenced to a jail term of more than three months. “Anyone who wants to run in the election, you better be careful. I think that’s the message,” he said. [Source]

Quartz’s Mary Hui examined the authorities’ exploitation of this opportunity on Sunday:

It appears that China is leveraging the pandemic as a rare opportunity to make aggressive gains across multiple fronts, betting that it will face minimal meaningful pushback from foreign governments distracted by their own epidemic response. Chinese government officials and academics have already framed the coronavirus crisis as a chance to advance the overseas expansion of its companies. China has also of late renewed its activities in the disputed waters of the South China Sea. [See more from The New York Times, and other examples such as the use of forced quarantine against citizen journalists and a rights lawyer released from prison, via CDT.]

[…] For foreign governments, the challenge will be to identify China’s maneuvers and respond adequately, even as a domestic health crisis continues to unfurl. In particular, the arrests now present the US with a concrete scenario with which to evaluate how to enforce the Hong Kong Human Rights and Democracy Act, passed last November. The law requires the government to assess whether Hong Kong should continue to enjoy a special US trade and economic benefits, like being shielded from tariffs on Chinese goods.

Hong Kong appears to have weathered the first wave of the coronavirus epidemic with relative success, but there are fears that the government will use public health restrictions to clamp down on protests once the pandemic subsides. Already, there have been instances of what looks like a selective enforcement of health rules to target the protest movement.

Though large-scale protests have taken a hiatus due to the pandemic, the resistance movement is by no means over as people’s grievances over an unaccountable police force, eroding freedoms, and an undemocratic government remain unaddressed. The mass arrests have only deepened them. A number of crucial dates now loom on the horizon: the Tiananmen Square vigil on June 4; the first anniversary of last June’s million-person march, and the annual July 1 march. A boiling over of public anger looks likely, in whatever form that might take in Hong Kong’s post-pandemic world. [Source]

At CNN, James Griffiths examined the prospects for renewed protests following Saturday’s arrests:

While those arrested are prominent figures within the broader pro-democracy movement, their influence on the largely youth-led, leaderless anti-government protests which began last year is marginal, and if police and the government hope that prosecuting them will help put an end to the unrest, they may be disappointed.

Indeed, the arrest of figures such as Lee — a widely-regarded, 81-year-old veteran democracy campaigner, who began work under the British colonial government — as well as other members of the opposition establishment, such as former lawmakers Lee Cheuk-yan and Albert Ho, could help bring more moderate Hong Kongers back to the protest fold.

[…] Even during the pandemic, a core of dedicated protesters has proven that they are able to cause considerable chaos and gridlock, with protesters targeting a proposed quarantine center early on in the pandemic and linking concerns about the virus to the city’s lack of autonomy. The opposition has also capitalized greatly on China’s failures in containing the virus and allegations of an initial coverup, arguing that Beijing cannot be trusted to put the city’s safety first.

[…] How many turnout this summer, however, is dependent on a multitude of factors outside the protest’s movement control: do Hong Kongers have the energy to begin another prolonged bout of protests; will the famously cautious populace risk a mass gathering, whatever the coronavirus rate; and might the government, armed with the possibility of extending virus restrictions beyond spring, seize the opportunity to curtail protest numbers? [Source]

South China Morning Post’s Danny Mok reports on the use of disease control restrictions against participants in a commemoration of a totemic episode from last year’s unrest.

Police handed out dozens of HK$2,000 (US$256) fixed penalty tickets for violations of coronavirus social-distancing rules to a group of protesters in Hong Kong, the force revealed on Wednesday.

Pepper spray was also used on two men, aged 21 and 22, who were arrested for obstructing police as tensions flared in Yuen Long in the northwestern New Territories on Tuesday night.

A small crowd of about 50 people had gathered to mark nine months since a violent mob attack on anti-government protesters and railway passengers in Yuen Long MTR station.

The group staged a sit-in inside Yoho Mall next to the station at 7pm. Some later defied the ban on public gatherings of more than four people, assembling on nearby Fung Cheung Road and Castle Peak Road. [Source]

Also at South China Morning Post, Christy Leung and Ng Kang-chung examined the prospects for upcoming political gatherings including International Workers’ Day marches on May 1 and Tiananmen commemorations on June 4.

A senior police source said they had asked both the pro-democracy CTU [Confederation of Trade Unions] and the pro-Beijing Federation of Trade Unions to withdraw their protest applications, warning they ran the risk of holding illegal events if they took to the streets regardless.

The source said they would also seek legal advice on how to handle possible bids for the June 4 vigil in Victoria Park to mark the anniversary of the Tiananmen Square crackdown in 1989.

The social-distancing rules, which were introduced in late March and now run until at least May 7, include banning public gatherings of more than four people and shutting 11 types of social and entertainment venues such as bars, beauty salons, karaoke bars and fitness centres.

[…] The source said they had so far received no applications for the June 4 vigil in Victoria Park. But the force would seek advice from the Department of Justice to see if there were legal grounds for banning any public assembly even if the social-distancing regulations had already expired.

[…] Lee Cheuk-yan, general secretary of the confederation, said: “It is absurd that police want to ban our rally even if we can make arrangements to satisfy the social-gathering restrictions. We can ask people to march in groups of four, with each [group] keeping 1.5 metres (4.9 feet) away. [Source]

At Hong Kong Free Press, Tim Hamlett commented on the group size restriction and its potential application to political protests. He highlighted an incident in which a group called “Chinese Hearts” called for disciplinary action against pro-democrat Legislative Councillor Tanya Chan after she participated in a meeting of more than four people: “As more than four people attended the protest, the police ‘warned the group to break up’, as the Standard put it, so a selected four marched alone.”

Even if crowd size restrictions are lifted, the anti-mask law introduced in response to the protests last year will remain, now clashing with participants’ desire for protection from infection as well as for anonymity. Yi-Ling Liu described the adoption of masks in a reflection on last year’s protests at Harpers this week:

On the ferry, I glanced around at the other passengers—families, high schoolers, elderly couples—talking quietly among themselves. Was anyone else going to the protest? I couldn’t tell. The ship docked at the pier and the ferryman lowered the ramp. Across from me, a young man in a black T-shirt took a face mask out of his pocket and slipped it on. Bags zipped, shoes shuffled; the young man adjusted the straps of his backpack. Only as I rose from my seat did I realize: everyone was.

“Fight for freedom!” the young man yelled. The passengers, as if roused from slumber, responded in a chorus to his call. “Stand with Hong Kong!” We spilled out onto the pier, like a tide gushing in from the harbor onto the streets, where hundreds of thousands of protesters were already waiting. Black shirts and black pants, black caps and black bandannas, black bags and black sunglasses. Fathers and sons in black. Strangers and friends in black. Middle-aged women in black capri pants toting black umbrellas. Teenagers in black leggings under black shorts, safety goggles swinging from their necks. Everyone was wearing a mask—surgical masks, ski masks, Guy Fawkes masks, Hello Kitty masks, Joker masks. Only their eyes were visible, vigilant and alert.

I took out a surgical mask I’d bought at a convenience store. The mask—thin, polyester, bone-white—felt strange in my hands. When I had placed it on the counter earlier that day, the man working the register had paused to look me in the eye with what I thought was an expression of approval, but I couldn’t be sure. I put the mask on and stepped into the stream of people.

[…] Later […], I attended the Halloween Masquerade Parade, a march from Victoria Park to Lan Kwai Fong, the central bar district, that had been organized by protesters via Telegram. The parade was a playful work-around for the mask ban: as far as the authorities were concerned, the marchers, who had swapped their black clothes for Iron Man armor and Jedi garb, rainbow tassels and devil’s horns, were simply celebrating an international holiday. An orange-wigged Donald Trump strolled next to Winnie-the-Pooh; a robed Yoda greeted Maleficent toting a black umbrella; a man in a ghoul mask held the hand of his toddler son, who was waddling down the street in a skeleton onesie. [Source]

At Foreign Policy on Wednesday, lawyer and author Anthony Dapiran examined the repercussions of last year’s protests amid this year’s pandemic:

The arrests have confirmed the main legacy of 2019: the sense that the Hong Kong government is no longer acting in the best interests of its people. […]

[…] This destruction of institutional trust has colored reactions to the government’s management of the coronavirus and led to something of a paradoxical situation: Hong Kong has been among the world leaders in controlling the virus—Hong Kong, a city of over 7 million people, has recorded just over 1,000 cases and only four coronavirus-related deaths—yet Hong Kongers overwhelmingly credit themselves, rather than the government, with that victory. A poll conducted by the Chinese University of Hong Kong for the South China Morning Post revealed that 72 percent of respondents agreed with the statement “If Hong Kong avoids a large-scale epidemic, it will be due to the community response.” Only 24 percent of respondents agreed that the government should take the credit.

[… T]he administration’s notoriously poor communication skills meant that even this positive outcome became a public relations disaster. The government mismanaged messaging around virus containment measures and mask-wearing. Press conferences became a fiasco, with the public making a game of observing when Chief Executive Carrie Lam and her cabinet members failed to wear masks or donned them incorrectly. Lam was also regarded as being overly deferential to Beijing in managing the closure of the border with the mainland.

[…] A call to arms that emerged during the 2019 protests—“Save our own Hong Kong”—encapsulates this self-help response of the Hong Kong community. When the government has lost the public trust but there is no mechanism to vote it out, the community must take action itself. And in the face of the coronavirus, it has been doing just that. [Source]

The protest movement has taken a surreal turn in the pandemic’s shadow, with demonstrations taking place in the Nintendo Switch game Animal Crossing: New Horizons. The game was subsequently withdrawn from sale at some Chinese retailers, while 2014 student protest leader Joshua Wong has taunted mainland fans of the game who blamed and reportedly threatened him for making it harder to obtain.

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