Hong Kong’s fight for independence

Abby SeiffMonday 14 October 2019

Students boycott their classes as they take part in a protest against the extradition bill at the Chinese University of Hong Kong, China, 2 September 2019. REUTERS/Tyrone Siu

Despite the promise that ‘one country, two systems’ would continue after the British handover to China in 1997, the territory has witnessed democracy and the rule of law being steadily eroded. The resulting protests have been unprecedented in their scale and reach.

The bill that spurred one of the largest protest movements in modern history is just a handful of pages. Some ten proposed amendments in all. Thousands, then tens of thousands, then millions of Hong Kongers have taken to the streets in recent months – first, in protest at the bill, later, in rage against mounting police brutality and the government’s response.

The movement has been unprecedented in its reach. A normally silent business community has grown outspoken, duty-bound civil servants have defied government orders and marched, youth that many feared had grown apathetic have put themselves on the frontlines while ‘silver-haired’ protesters marched to support them.

The bill itself was shelved in June, but the protests have only grown since then. Promised ‘one country, two systems’ after the British handover of the territory to China in 1997, Hong Kong has witnessed its independence steadily chipped away. While some nations erode democracy through force, Hong Kong’s has been undermined through legislation and court rulings: bureaucratic efforts to remove parentheses, to amend a sentence here and there. For Hong Kongers, the current moment therefore feels like a last gasp.

‘You see all of this pent up anger across the board on account of the various failings of policies and the abuse of power that we’ve seen by the government in repeatedly pushing through various laws and policies despite public opposition, and then being denied access to opportunities for accountability or accountable government through democratic participation. The ongoing protests are really the tipping point,’ says Puja Kapai, an associate professor of law at the University of Hong Kong.

A deliberate decision

The extradition bill that set into motion months of unrest in Hong Kong comprises a series of amendments to the Fugitive Offenders Ordinance (FOO) and the Mutual Legal Assistance in Criminal Matters Ordinance (MLAO). Both ordinances date back to 1997 and outline the terms under which a fugitive suspect can be extradited. They total more than 150 pages, but the key detail is clear from the start: These arrangements can be made between Hong Kong and any government ‘(other than the Central People’s Government or the government of any other part of the People’s Republic of China)’.

The parenthetical served a number of practical purposes at the outset. At the time of the handover, Hong Kong was a powerhouse economy widely seen as having one of the strongest legal systems in Asia. China, meanwhile, was still four years away from joining the World Trade Organization and possessed a judiciary that was considered at best to be deeply uneven and at worst plagued by corruption.

‘It was in China’s best interests to keep the Hong Kong legal system completely different and to allow companies to incorporate in Hong Kong. The general understanding at that point in time was that China’s legal system wasn’t developed enough,’ says Jessica Mahlbacher, a doctoral candidate in political science at the Graduate Center, City University of New York, who is writing her dissertation on how state–society relations impact the Hong Kong government’s implementation of the Hong Kong Basic Law. ‘The Chinese government made a lot of money from Hong Kong in 1997. Hong Kong was crucial to the overall economy – they wanted to make sure people had faith in that system.’

If international capital was to continue to flow into Hong Kong, it was crucial to keep the legal systems separate – giving those investors confidence that they wouldn’t somehow find themselves in a mainland court. ‘It was a deliberate decision by the legislature when enacting the FOO in 1997 not to provide for the application of the FOO to rendition arrangements with the rest of the PRC, particularly in light of the fundamentally different criminal justice system operating in the mainland and concerns over the mainland’s track record on the protection of fundamental rights,’ the Hong Kong Bar Association (HKBA) noted in one of several position papers it wrote on the extradition law.

Two decades on, China’s legal system has grown stronger. Its economy, of course, is now the second-largest in the world. But its judiciary remains riddled with misconduct. Often seen as an organ of the state, the courts are far from impartial. The country is regularly ranked among the worst violators of human rights by groups like Freedom House, a situation exacerbated by its judicial tendency to ‘rule by law’, wherein activists, rights lawyers, journalists and others are routinely imprisoned on spurious charges as a means of silencing the outspoken. Perhaps one need look no further than the country’s conviction rate for a hint at the situation – it is above 99 per cent.

Rule of law is a very core value for Hong Kongers, more than democracy, more than anything else, rule of law really matters

Jessica Mahlbacher
Graduate Center, City University of New York

‘Simply put, China has no due process system,’ says John Vernon, former Chair of the IBA Human Rights Law Committee and a partner at Dallas-based Vernon Law Group.

Given the clear reasons for the delineation between the two legal systems, the government’s proposal to amend the legislation baffled, then outraged, many.

First proposed in February, the bill sought to remove the parenthetical that barred any extradition agreements with the mainland. It also added a nebulous ‘special surrender arrangements’ provision in which the Chief Executive issues a certificate for extradition rather than having to go through the Legislative Council for permission, as is currently the case.

‘The most troubling provision is that the proposed bill excludes the Legislative Council in Hong Kong from any role in overseeing the extradition process, even though the Council has the power to block extraditions under existing law,’ says Vernon. ‘The bill’s human rights standards are non-existent. The bill eliminates Hong Kong courts from intervening to deny extradition. Hong Kong courts can merely rubber stamp the extradition request. Sadly, Hong Kong’s leader, Chief Executive Carrie Lam, was selected by a small circle of pro-Beijing electors and not elected by the citizens of Hong Kong, meaning that there is no check and balance on her abuse of authority under the extradition amendments.’

People walk inside the Legislative Council building, after protesters stormed the building on the anniversary of Hong Kong’s handover to China, in Hong Kong, China, 1 July 2019. REUTERS/Stringer

Drafted in the wake of a case in which a Hong Konger fled Taiwan after allegedly murdering his girlfriend while on holiday, the law was intended to allow justice for the family of the victim – or so claimed the government. Many were less certain. Skeptics included Taiwan, which said it would not seek extradition if the bill passed (citing danger to its own citizens) and questioned whether the amendment was ‘politically motivated’ and the case an ‘excuse’. Other arrangements could have been made, legal experts believe, and Taipei said its efforts to even discuss a solution with Hong Kong authorities early on were met with silence.

By the time the bill was sent to the Legislative Council in early April, concern was mounting. In removing that parenthetical from Hong Kong’s extradition bill, Hong Kongers, foreign residents and even those transiting through the Special Administrative Region could face the politicised mainland courts. ‘Under Hong Kong’s common law regime, there are various rights afforded to a defendant who is facing a charge such as presumption of innocence, right to legal counsel, right to legal advice and the independence of the judiciary, the consistency across sentencing for similar types of crimes, etc,’ says Kapai. ‘The worry of course was that the Beijing government does not enshrine any of these values in its legal system and news about the practices of the legal system that has emerged over the years has essentially undermined any realistic prospects of a fair trial if a suspect were to be apprehended and extradited to the mainland.’

Outspoken Hong Kongers could be targeted for their political activism, but so too could businesspeople who may have fallen afoul of various factions over the years. ‘Anyone doing business in China in the 1990s, when even rule by law really varied province by province, could end up getting caught up in this,’ says Mahlbacher. ‘In order to do business in China [at the time], you had to “grease hands” as it were. It was done through informal practices; not everything was above board. But the legislation didn’t have statute of limitation.’

Thousands, then tens of thousands of protesters took to the street. The business community, usually loathe to wade into political matters, urged the government to reconsider the bill. The American Chamber of Commerce in Hong Kong wrote in March: ‘The new arrangements could be used for rendition from Hong Kong to a number of jurisdictions with criminal procedure systems very different from those of Hong Kong – which provides strong protections for the legitimate rights of defendants – without the opportunity for public and legislative scrutiny of the fairness of those systems and the specific safeguards that should be sought in cases originating from them.’

Lam was adamant the bill move forward quickly. At a press briefing in April, she stressed the need to pass it in time to extradite the suspect in the Taiwan case, who – unable to be tried for murder in Hong Kong’s courts – was serving a sentence on a money laundering charge and could be released as early as October. Lam said there were two purposes in amending the FOO and the MLAO. First, ‘to provide a legal basis for us to deal with the Taiwan case’. Second, ‘to plug a loophole in the existing arrangements for the return or the surrender of fugitive offenders. The first objective will have a very critical time element, and that’s why we are operating under urgency to deal with this matter,’ she said.

Damages inside the Legislative Council building in Hong Kong after protesters stormed it during a demonstration on the anniversary of Hong Kong’s handover to China, 3 July 2019. REUTERS/Jorge Silva

The government’s insistence that it was merely ‘plugging a loophole’ rankled those in the legal profession. As the HKBA noted in its statement, the decision to bar the PRC from the possibility of entering rendition agreements was ‘deliberate’.

‘This restriction against any surrender arrangements with the rest of the PRC, whether under a long-term formal arrangement or case-based arrangements, is not a “loophole”, as repeatedly, and in our view, misleadingly, asserted by the senior government officials (namely the Chief Executive, the Secretary for Justice, and the Secretary for Security) on various occasions and now in the LegCo Brief,’ the Bar Association’s April statement noted.

On 6 June, a record 3,000 Hong Kong lawyers marched in silent protest against the bill, joining the tens of thousands who by then were regularly demonstrating. Two weeks later, on 16 June, the protest drew some two million people – more than a quarter of Hong Kong’s population. That the bill had finally been shelved a day earlier by then mattered little.

A promise never delivered

When China’s leader Deng Xiaoping developed the ‘one country, two systems’ policy in the 1980s, it was in the midst of an unprecedented (and never to be repeated) period of economic and political reform. The policy was a means to an end of reunification, but one that seemingly married respect with common sense.

‘If the problem cannot be solved by peaceful means, then it must be solved by force. Neither side would benefit from that. Reunification of the motherland is the aspiration of the whole nation. If it cannot be accomplished in 100 years, it will be in 1,000 years. As I see it, the only solution lies in practising two systems in one country,’ Deng said in remarks in 1984.

‘If at this stage people are still worried about whether they can trust us, having no faith in the People’s Republic of China and the Chinese Government, what’s the point of talking about anything? We are convinced that the people of Hong Kong are capable of running the affairs of Hong Kong well, and we want to see an end to foreign rule. The people of Hong Kong themselves will agree to nothing less.’

Since the handover, however, many of the original promises have gone unfulfilled.

The history of Hong Kong’s protests trace a series of controversial legislation which are viewed as Beijing chipping away at the city’s autonomy. In 2003, half a million people turned out at rally against a national security bill criminalising ‘treason, secession, sedition,’ against the Chinese government ‘or theft of state secrets’. Commonly referred to as Article 23 (which refers to the provision in Hong Kong’s constitution calling for the drafting of such a law), the bill was shelved. But its existence hovers in the background amid discussions of rising repression.

Simply put, China has no due process system

John Vernon
Former Chair, IBA Human Rights Law Committee

While Hong Kong is guaranteed universal suffrage in its constitution, that has yet to be installed. In 2014, China’s Standing Committee handed down its decision regarding the selection of the Chief Executive that declined to allow for ‘one person, one vote’ – a refusal that launched the Umbrella Movement. In 2016 and 2017, six pro-independence lawmakers were stripped of their seats on a technicality surrounding their oaths of office, and six candidates were barred from running (one, Agnes Chow, just last month saw her case overturned at the high court – a sign that the court yet remains independent, if slow, in Hong Kong).

In the Legislative Council, meanwhile, a raft of laws and rules are weakening Hong Kong’s independence. In 2017, the Legislative Council passed new rules aimed at weakening the opposition’s ability to utilise filibuster. Last year, the arrival of a new rail link paved the way for a deeply controversial law permitting mainland law in Hong Kong’s West Kowloon, at the site of the high-speed rail’s terminus – effectively allowing China’s legal system into Hong Kong territory for the first time. In January, the government proposed an unpopular national anthem law that would criminalise public insult (such as booing) of China’s national anthem. That came just months after the once deeply press-friendly nation barred the Acting President of the Foreign Correspondents’ Club, British journalist Victor Mallet, from entering the city after he pushed forward with a talk condemned by China.

Taken together, there is an evident chipping away at ‘one country, two systems’. ‘In all of these instances,’ says Kapai, ‘the fact that there wasn’t any protection or sense of protection around the principle of “two systems” in the same way as the “one country” framing was being highlighted led people to increasingly distrust the Chinese regime.’

Such legislation has passed by dint of a Legislative Council now stacked with pro-Beijing forces. But Beijing is making its position felt in less subtle ways, too.

One reason the extradition law has struck such a chord dates back to 2015, when five Hong Kong booksellers were abducted by Chinese authorities, smuggled over the border, detained incommunicado and forced to confess to grievous crimes including, in one case, manslaughter.

‘In those situations it became very clear that because this particular book shop/publishing house was publishing material that was not favourable from the Communist Party’s perspective, that they became the targets of political suppression and that suppression was exercised by using the law itself,’ says Kapai. ‘These incidents played on people’s concerns, and affirmed their suspicion around the mainland legal system and its ability to guarantee Hong Kong people extradited there a fair trial and due process.’

Eight months after the extradition law was first proposed, Hong Kong’s protests show scant signs of stopping. That has many concerned for what the future may bring, particularly with China’s National Day approaching on 1 October.

Unlike with the Umbrella Movement, in which protests were contained to a small area of the city, today’s rallies purposefully take place everywhere. Protests have taken place in airports and train stations, and in residential areas across the city. They cannot be ignored, and neither can the intense violence with which police have met many. While there has been violence on the part of some protesters, most have sought to be peaceful. The police, meanwhile, have been widely seen to be using excessive, indiscriminate force.

‘Beatings upon arrest are apparent and have been widespread,’ says the HKBA. ‘Excessive crowd dispersal techniques have included the indiscriminate use of tear gas (including inside an MTR [mass transit railway] station) and the shooting of crowd control projectiles at shoulder height level or above at close range.’

More than 800 people have been arrested since the start of the protests, and the Bar Association says many have been mistreated.

An anti-extradition bill protester is detained by riot police during a protest outside Mong Kok police station, in Hong Kong, China, 2 September 2019. REUTERS/Tyrone Siu

‘Members of HKBA who have assisted arrested persons have experienced obstruction at police stations, where arrested persons were denied timely access to legal assistance and representation. Arrested persons have also complained of abuses suffered during detention, many of whom required hospitalisation or other non-trivial medical treatments,’ the organisation said in a September statement.

The protests, which started in response to the law, morphed into a larger statement about democracy, and have since continually been reborn in the face of horror at the violent police response, have taken on a life of their own.

‘Rule of law is a very core value for Hong Kongers, more than democracy, more than anything else, rule of law really matters,’ says Mahlbacher.

‘The idea that the law matters, that the law should be implemented fairly, that the judiciary be impartial is key… You’ll see all the time around Hong Kong [statements saying] “this is not China”. That’s interpreted as ethno-nationalist but that’s not it in its entirety – it’s about judicial independence and rule of law.’

Beatings upon arrest are apparent and have been widespread. Excessive crowd dispersal techniques have included the indiscriminate use of tear gas

Hong Kong Bar Association

There are now four demands the protesters are calling for: Lam’s resignation, an independent inquiry into police violence, the release and acquittal of those detained and direct elections. In early September, Lam finally agreed to the original demand and formally withdrew the bill. However, protesters say much more needs to be done.

It is a list impossible to meet, so soaring as to leave many fearing how it might end. And regardless of the end, the damage to Hong Kong’s prized systems is likely done.

‘Therein lies the irony: that in their desire to protect Hong Kong’s prized rule of law, the government has essentially trampled all over it,’ says Kapai. ‘The law enforcement bodies that are actually tasked with this important role in upholding the rule of law, whether through the prosecutorial division or the police, have essentially squashed all hope of leaving Hong Kong’s rule of law intact.’

Abby Seiff is a freelance journalist. She can be contacted at aseiff@gmail.com