Hong Kong,Law and Justice,Politics |
July 22, 2014

Written by Daniel Garrett.

While undeniably the most extensive authoritarian and arguably violent crackdown by the SAR government since  the Handover, the local regime’s actions on July 2nd are best understood at this early point as a case of “killing a few chickens” to dissuade participation in OCLP and to dispel demands for civil nomination of CE candidates.  As such, more oppressive political policing and united front measures by the Chinese and HKSAR governments are anticipated as they have failed to sufficiently intimidate or subdue Hongkongers. Broader arrests of key activists on the basis of new or past direct action infractions can be expected in an attempt to break the back of OCLP and the youth and radical democracy movements. Judicial imposition of harsher sentences on exemplar activists or the threat of stiff penalties under the umbrella of good behavior is a likely escalatory response by the regime as is the prosecutorial use of more serious criminal charges for minor offenses.

Allusions in official and mass media statements by various mainland and Hong Kong agents of social control to heavier punishments and more invasive SAR and Chinese interventions (such as the deployment of the PLA Hong Kong Garrison) will become more overt and less equivocal as the likelihood of OCLP action draws near. It cannot be excluded that the SAR government will take preemptive action against activists prior to the announcement of the government’s political reform proposals or any NPCSC decision or interpretation regarding civil nomination. Subsequent to the massive turnouts for the OCLP referendum and the July 1st march and the marginal police performance in clearing protesters from Charter Road, deployment of the PLA Hong Kong Garrison has become a more conceivable (albeit inadvisable) response by the central authorities who likely have little or no confidence in the SAR government forces’ ability to adequately respond to a full-scale OCLP action (10,000 participants) – or one that diverges from SAR security forces’ expectations. The consequences of such a deployment, however, are likely insufficiently appreciated insofar as the future governability, prosperity and stability of the HKSAR goes.

Likewise, given the current international drift towards a potential new Cold War between Washington and Beijing and the state of deteriorating US-Sino relations, substantial potential economic and geopolitical downsides exist for China. This is all the more plausible as demands in some sectors of the U.S. economy and national security sector to exclude China from the U.S. and global economy are already present in the context of alleged Chinese cyber espionage and trade practices. A heavy hand by Beijing in Hong Kong would give wider public legitimacy and political weight in the U.S. to those demands and political pressures, especially in the Congress.  Unlike 1989, today China is in the midst of a transformational change in its economy and its ability to weather widespread coordinated embargos and sanctions is likely more fragile than the early-1990s.  On a related, note, regardless of what occurs with OCLP, Hong Kong, as a site of strategic contest between the United States and China, is very likely to reassume its Cold War-era status as the Casablanca or Berlin of the East.

The massive turnout of support for both the OCLP referendum and the July 1st march and the notion of civil nomination for the selection of the CE in 2017 has given vivid evidence to the patriotic forces’ long proffered lie that Hongkongers are apathetic or unwilling to stand-up to Beijing to have ‘real universal suffrage.’ If one thing is clear from the last few weeks, it is that Hongkongers will not accept Beijing telling them that what is falling on their heads is rain.  They expect for Beijing to abide by the promise made to them three decades ago to be able to elect their own – not Beijing’s man or woman in Hong Kong – but their own Hongkonger to administer the SAR.  By their own Hongkonger they mean someone who shares their values and identity – not someone who is a communist or dismissive of the Hongkonger identity and culture. (Garrett, 2014b) And indeed, the Chinese authorities have a moral obligation to allow Hongkongers that right as they have acquiesced for decades to Beijing’s demands of gradual and orderly progress in Hong Kong’s political development.

It is clear that the Central Authorities perceive the actual situation in Hong Kong to be strongly anticommunist if not hostile to the ruling regime in Beijing – which it is, though this is not the same thing as desiring to overthrow the CCP. Even Deng Xiaoping said Hongkongers didn’t have to love the Party to be a patriot, they just couldn’t take action to overthrow the socialist system. Yet, allowing Hong Kong civil nomination is no threat to China’s national security as Beijing still holds the ultimate veto – per the HKSAR Basic Law – the power to refuse to sit a hostile CE that has been popularly elected. They can then appoint whoever they want even without holding another election – also per the Basic Law. This option may be politically unpalatable to execute, but they have it and should not be afraid to execute it. Likewise, Beijing can always remove a sitting CE if there be cause.

More importantly, however, is that Beijing’s current preference for political pre-screening, the so-called ‘patriot principle’ is ultimately problematic from both a Hong Kong/Western rule of law and OCTS perspective. And while the central authorities might be able to rectify the first with a National People’s Congress Standing Committee action, they cannot do so for the second issue. Arguably, this (two distinct but symbiotic systems) is the best and only yardstick by which to measure the implementation of universal suffrage rather than so-called international standards for suffrage or democracy which are insufficient to prevent authoritarian regimes’ manipulation (or, increasingly, even manipulation of democratic regimes.)

First, per the Basic Law all Hongkongers are created equal (Article 25) and can stand for election (Article 26) insofar as they meet stipulated, i.e., codified, demographic and residency requirement.  The Basic Law does not state candidates have to be patriotic and does not codify what a patriot is or how to make that assessment.  Moreover, as described elsewhere, the type of patriotism expected of Hongkongers under OCTS is distinct from that on the mainland (Garrett, 2012; Leng, 2009; Qiushi Editorial, 1990). At time of writing, the central authorities had yet to codify the “patriots ruling Hong Kong principle” identified by Deng Xiaoping in the early 1980s.  Nor have they codified what type of actions might disqualify a candidate from being considered ‘patriotic.’  This is despite reemphasizing the patriot principle formally to Hong Kong in 2004 during the SAR government’s Constitutional Development Task Force exercise between Beijing and the SAR government.

Second, and most importantly, any effort to politically pre-screen CE candidates from an election essentially means the central government is introducing China’s inner-party or grassroots democracy model utilized on the mainland. In other words, a system where CCP approved candidates are selected to run for ‘office’ and Beijing will accept any of them albeit they may have preferences for one or the other. In other words, China would be introducing the socialist system in Hong Kong for the selection of the CE in direct contravention of the OCTS concept. It would be “One Country, One System” – more along the lines of Special Economic Zone, not a Special Administrative Region.

Rather, to avoid this quandary Beijing has to be willing to save its powder and execute its ‘option’ to refuse to appoint a chief executive elect at the end of the electoral process if need be, not the beginning.  Beijing would then get what it wants anyway though at some political cost and Hongkongers, while not liking it, would be more likely to accept such an arrangement because it is in fact enshrined in the Basic Law. It would not be totally ‘fair’ as Hong Kong’s political system is a competitive authoritarian model, but it would be infinitesimally fairer than the one-party Hong Kong-style grassroots democratic model that is being shopped around now by pro-Beijing forces.

However, a successful solution in Hong Kong requires patience on the central authorities and SAR government’s part. If they escalate or carry through with a more extensive policing crackdown they will only succeed in turning Hong Kong into a democratic insurgency. Then, the basic desire of the central authorities – for Hong Kong not to be a problem for them – would be lost.

Daniel Garrett is a PhD. Candidate in the Department of Applied Social Studies at the City University of Hong Kong and CPI blog’s emerging scholar. He tweets @DanGarrett97. Part 1 of this essay was published on July 22nd. 

Comments

  1. As a long-time Hong Kong citizen and a former member of the China Policy Institute’s first Advisory Board, I feel obliged to offer the following comments.

    First, as expounded by Carrie Lam, HK’s Chief Sectary, in her article in the Wall Street Journal, http://online.wsj.com/articles/carrie-lam-the-rules-for-hong-kong-electoral-reform-1406473207 universal suffrage was not spelt out in the Joint Declaration with the UK on Hong Kong’s reversion to China. It was Beijing’s idea to introduce it in the Basic Law, which is a national law of the PRC. Later, after the handover, Beijing further specified in 2007 that universal suffrage to elect the Chief Executive should be introduced in 2017. So, there is no reason why Beijing should risk its international credibility by going back on its word. Indeed, recent authoritative pronouncements by Beijing have made this clear beyond doubt.

    Second, under the One Country Two Systems principle, Beijing has never allowed, let alone promised, that Hong Kong people can have a completely free hand in choosing whom they want. In accordance with the Basic Law, the selection of the Chief Executive must be “by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.” (Article 45). No alternative is contemplated, nor is there any provision to allow the nominating committee to delegate or dilute its collective power of nomination. Legally, this rules out direct nomination by other means including “public nomination”.

    Third, the reason behind Article 45 of the Basic Law is to minimize the chance of someone being elected in the rough and tumble of universal suffrage who may be potentially subversive of Communist Party in Beijing. This doesn’t mean that the CE must be a Communist Party member at Beijing’s beck and call, nor does it mean that he or she is debarred from standing up to Beijing. If it were so, the Two Systems would collapse in the eyes of the world. But this does mean that the CE can’t allow Hong Kong to become a base for subversion of the regime on the Mainland. This is the very catch of the One Country part of the formula.

    Fourth, does this mean that Article 45 does not measure up to the so-called “international standards for suffrage or democracy”? Perhaps not. But this is indefinitely better than any system Hong Kong has enjoyed so far. Then, why should Beijing worry, provided it wields the substantive power of final appointment before any elected candidate can become the CE? The answer is that massive political cost of this nuclear option cannot be over-simplified. If Beijing should have to refuse appointing someone duly elected, this is likely to subject Beijing to international accusations of electoral charade. The whole credibility of One Country Two Systems would be undermined. The people of Hong Kong would be disgruntled, sowing the seeds of political unrest.

    Fifth, does it mean that Beijing wants to know the outcome before an election is held? The unspoken answer is Yes, to make sure that no one is allowed to run who is suspected to be a potential subverter of Communist Party rule in China. Indeed, this is what the requirement of “patriotism” actually means. This is only a natural and essential credential expected of a Chief Executive of the Hong Kong Special Administrative Region accountable to the central government.

    Sixth, does it mean that the Hong Kong people would not have a genuine free choice? Not necessarily, because the nominating committee can be made as broadly representative as possible, which also means that the different sectors underpinning Hong Kong’s economic and social viability, including the business, professional, grassroots, and political sectors, must be evenly maintained.

    Seventh, is Hong Kong turning into a police state? The description of alleged police violence is really over the top, if one had watched how restrained the police acted in maintaining order. Anyone living or visiting Hong Kong realizes how liberal the place is. Hong Kong’s tolerance in becoming the world’s “capital of protests” is well earned. Recently, Hong Kong has retained its enviable position, for 20 years in a row, as the world’s freest economy, according to stringent yardsticks of the Heritage Foundation. This prestigious think-tank wouldn’t have awarded this accolade consistently for so long if Hong Kong’s civil society and other fabrics of liberalism fail to make the cut. But Hong Kong also prides itself on its rule of law. Hence unprecedented attempts to force through the gates of the Legislative Council building, or more alarmingly, gate-crashing the local garrison premises of the People’s Liberation Army, cannot be condoned under the law. Advanced democracies would have acted likewise in similar circumstances.

    Eighth, is Beijing’s worry about foreign instigation paranoiac? Not quite. The Hong Kong media is now awash with revelations of secret donations of millions of dollars to “democratic” politicians, activists and civic leaders, all from one single source, the founder of the Apple Daily, who is reported to have close contacts with U.S. top aides like former US Deputy Defence Secretary Paul Wolfowitz. http://www.thestandard.com.hk/news_detail.asp?we_cat=11&art_id=147647&sid=42667458&con_type=1&d_str=20140723&fc=2 Many of the reported recipients of these political donations have yet to account for publicly how these substantial sums are used. The donations also include some $20 million to ex-Catholic Bishop Zen, who became a vocal Beijing critic in Hong Kong, during the tenure of his bishopric. What comes to mind is Pope John Paul II’s famous involvement in the Orange Revolution in Poland eventually leading to the collapse of the former Soviet bloc. It’s small wonder that Beijing remains suspicious of possible plots to ferment a Jasmin revolution in Hong Kong agitating for the overthrow of the Communist Party. Reference to risks of Hong Kong becoming a future Casablanca is quite apt.

    In sum, One Country Two Systems means that Two Systems cannot exist independently of One Country. A high degree of autonomy under the Two Systems, yes, but not to the extent of threatening the stability of the One Country.

    Indeed, the recent publication by Beijing of a White Paper on Hong Kong’s One Country Two Systems, unusually translated into seven languages, is meant to tell the world where Beijing’s redlines lie. http://www.andrewleunginternationalconsultants.com/publications/2014/06/beijings-white-paper-lays-down-the-red-lines-for-hong-kong.html

    Against Occupy Central, whose organizers also received secret donations from the same source, there is now a surging movement for Hong Kong’s silent majority to speak out. The Anti-Occupy Central movement has now gathered over one million personal signatures and counting. This clears some of the smoke and mirrors that what Occupy Central stands for represents mainstream public opinions.

    Yes, Hong Kong deserves more democracy and should see an open, fair, and accountable universal suffrage to elect a new Chief Executive in 2017. But the election must be conducted in accordance with the Basic Law. Using coercion, however “peaceful”, to force Beijing’s hand to break the Basic Law does not accord with Hong Kong’s law-binding value. If anything, it is likely to wreck the very One Country Two Systems formula these coercive actions purport to uphold.

    Best regards,

    Andrew

    http://www.andrewleunginternationalconsultants.com

    Reply

  2. Dear Andrew,

    Thank you for your comments.

    As most of your comments were on HKSAR government talking points rather than connected to issues discussed in the blog article I will not attempt to address them here further than to say that their framing by Ms. Lam is problematic, advantageous (obviously), and elides a great deal of the history of how the Basic Law, let alone, universal suffrage came to being. Obviously, for the Chinese government they remain very concerned about the negotiations and work of the Basic Law Drafting Committee as a variety of related documents remain inexplicably classified and not available for public examination. Lots of half-truths and omissions on both sides (British and Chinese) are involved here.

    With regards to the reference to Hong Kong turning into a police state and claim that the “description of alleged police violence” was “over the top” I have a few comments. First, just because the police were restrained from deploying more violent political policing techniques in this instance does not mitigate that they used excessive force to remove the non-violent protesters. Use of joint locks and pressure points were excessive and not exceptional albeit they were not universally applied. Yet, selective political policing and prosecutions of Hong Kong’s radical and youth protesters is the norm these days. Though, as I remarked to another commentator on the article, if one was a leftist during the pre-Handover period there was indeed problematic political policing by the Brits too. Perhaps some might argue that the difference now is that the one’s being prosecuted are those against the communists on the mainland instead of for them.

    Insofar as Hong Kong turning into a police state it was not simply just the egregious actions on the 2nd of July but a growing trajectory of problematic political policing in Hong Kong since 2007/08 and especially since 2010. That said, by and large, the line officers are very professional and many even (apparently) conflicted about having to confront their fellow residents but politics have clearly entered the equation. Insofar as direct observation of protests in Hong Kong, I’ve had observed at length probably close to 150 to 170 demonstrations, marches, rallies, or other events in just the last three years alone so I’m a bit familiar with the policing and protest routines in Hong Kong from a street-level perspective.
    Your reference to the Heritage Foundation and designation of Hong Kong’s as the world’s freest economy is quite disingenuous as you obviously understand that economic freedoms are not the same as political or speech freedoms. Perhaps you should read the Hong Kong Journalist Association or the Committee to Protest Journalists reports on the Hong Kong and Chinese government’s eroding tolerance of dissent in the SAR for a more well-rounded perspective. The Human Rights Watch and the Hong Kong Human Rights monitor sites might be instructive as well.

    You also mention the “gate-crashing” of the People’s Liberation Army Hong Kong Garrison’s Central Barracks yet there was no “gate-crashing” and definitely no “breaking into” as many mainland mouthpieces and several central government and SAR officials exaggerated for political goals. Anyone person who has observed the video of the incident can clearly see that the handful of protesters loudly walked up to an open gate and stepped inside waving flags and shouting and then were pushed out by startled soldiers. At best they were guilty of trespassing, not of breaking-in; an ill-advised act (in any country) but not violent or aggressive. The fact that the troops did not respond more aggressively or violently speaks well of their training (they are a showcase for the PLA after all) but the propaganda campaign that followed it torpedoed any opportunity for the Chinese or SAR governments to gain much public sympathy regarding the incident. Worse yet, the subsequent attacking of the leader of the transgressive protest in front of a Hong Kong court and in full view of police officers, however, was a violent act. One that was arguably symbolically condoned by the HKSAR court with its slap on the wrist punishment of community service for the attacker. That the pro-Beijing crowded welcomed the attacker with flowers and cheers of support after his recent sentencing also speaks volumes for where their hearts may lay with respect to the use of violence.

    Hong Kong and the Hong Kong SAR – two different cultural and political entities – have always been a base of subversion dating back to the Taiping Rebellion. The Taipings subverted the Qing; Sun Yat-sen and the Xinhai had a very strong nexus to Hong Kong. The Chinese Communist Party itself has also longed used Hong Kong as a base of subversion: against the British; against the Kuomintang (KMT); against the Japanese; against the U.S. and United Nations embargos; against Taiwan (KMT, the Democratic Progressive Party (DPP), and the Falun Gong); and, during the Cold War at the very least. And, as you probably know, several important Hong Kong companies and tycoons (along with some Brits) helped the newly born PRC survive by embargo busting and smuggling currency, goods, technologies, and weapons to the mainland during and after the Korean War.

    Ultimately, the “One Country, Two Systems” ideology was conceived with seeing Hong Kong as a threat to the socialist system case in point: Deng’s numerous comments about ‘neither side swallowing the other’ being one aspect of that (though it’s quite obvious today that Hong Kong is being swallowed) as well as the policy’s basis on “peaceful co-existence.” All that said, Beijing’s policies in Hong Kong have made real its fears by its overreaction to dissent in the SAR and its domineering approach towards national identity and patriotism. Seventeen-years ago there were NO independence/separatist movements to speak of; today China’s ‘patriotic camp’ in Hong Kong shake in their boots over it and its agents of social control cannot write enough commentaries or editorials in Hong Kong papers warning over “those Hongkongers.” All one has to do is read the China Daily, Global Times, Ta Kung Pao, or Wen Wei Po and you can wallpaper any flat with the invectives against the “opposition camp.” This is one of the most glaring and unavoidable failures of the “One Country, Two Systems” and “Patriots ruling Hong Kong” policies: rather than ensuring China’s sovereignty they’ve (‘the Patriots’) have undermined it by their ‘rule’ over ordinary Hongkongers. Unfortunately, for ordinary Hongkongers and the Chinese Communist Party, the ‘redder than Mao’ camp in Hong Kong has caused no end of problems with their identity policies against the pro-democracy forces – just as much as many democracy advocates’ deep anticommunist sentiments have led to and aggravated confrontations with the pro-Beijing forces.

    The ‘revelations’ about Jimmy Lai are nothing ‘new’ – Beijing has long made these claims (as well as about the US, the NED, NDI, etc. – the difference being that someone, perhaps Beijing’s much discussed cyber espionage forces obviously had a hand in the ‘leaks’. Similarly accusations arose against other democrats in 2004 during the “Patriot Wars’ in Hong Kong following July 1st, 2003 and the later Disctrict Council elections. Yet, the timing of the disclosures and their prima fascia support for the numerous shrill screams of “color revolution” in Hong Kong by the “patriotic camp” and talking heads in Beijing no doubt is intended to add salience and substance to this (old) narrative. Beijing, however, has overplayed its hand with these united front tactics because they simply remind everyone why they were afraid of the communists up north and in their midst to begin with. Moreover, the salacious stories about Lai funding this or that pan-democratic are simply a distraction from the equally well established pro-democracy claims of China’s Liaison Office interference and funding pro-Beijing political parties and figures in Hong Kong.

    More recently, and alarmingly for Hong Kong’s peaceful protest tradition, has been the emergence of pro-Beijing so-called ‘civil society’ groups which repeatedly use violence – actual and symbolic – to quell dissent in Hong Kong. And that doesn’t even begin to discuss the issue of the numerous unsolved life-threatening attacks in the post-Handover period on pro-democracy legislators and journalists critical of Beijing. Likewise, the anti-Occupy Central with Love and Peace united front campaign and tactics are not convincing anyone but are dividing and further polarizing an already politically divided city. It’s almost as if some in the pro-Beijing camp wants violence to transpire surrounding OCLP under the misguided conception that since they were ostracized and alienated for their role in the 1967 Riots were leftist/communist bombings and assassinations of critics occurred, if there were violence surrounding OCLP then the pro-Beijing forces might be rehabilitated in Hong Kong and democrats marginalized. Very dangerous, wishful thinking on their part. As often is the case, they (the pro-Beijing camp in Hong Kong) are their own worst enemies though it clear they have no monopoly on sticking their foot in their mouth.

    Unfortunately, the Basic Law is not going to ‘fix’ this problem. It is a political problem and one of Beijing’s creation (though the Brits had a hand in it back ‘when.’) Trying to twist the Basic Law into saying something that it doesn’t will just destroy the whole deck of cards. There is ‘no patriot’ principle codified in the Basic Law. There is, however, two articles which guarantee EVERY Hongkonger the same rights – including to stand for election as chief executive. Articles 25 and 26 as discussed in the blog piece. Those are the black and white cats of the Basic Law no matter what Beijing or anyone else wants to say. Equal before the law: patriot or not. If Beijing doesn’t like them, don’t appoint them but it doesn’t have the legal right to deny them the right too stand for election.

    Thanks again for you observations.

    Best Regards,
    Dan

    Reply

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