[OPINION] Can Hong Kong’s rule of law survive the anti-extradition bill protest movement?

As a close observer of Hong Kong affairs, I am often asked as to how the Hong Kong protests will end.  Nobody knows the answer to this question, but I believe a better one would be, how have the protests affected Hong Kong?  This question gets to Hong Kong’s “core value” of the rule of law.  Can the rule of law, so vital to a freewheeling trade and business center like Hong Kong, survive following the handover from British to Chinese rule? As this assessment is being reexamined in the light of the protest movement of 2019, it must be remembered that it arose following the Hong Kong government’s attempt to amend the law, allowing individuals in Hong Kong to be sent to China to face criminal charges there.  

Looking back to 1997, one can see a series of previous crises. In 2003, a government attempt to pass legislation relating to a number of offenses including treason, sedition, subversion, and leaking state secrets under Article 23 of the Basic Law was met with a massive street protest of over 550,000 people. In August 2012, a government initiative to introduce “patriotic education” drew tens of thousands of high school students out onto the streets resulting in that proposal being shelved.  Subsequently in 2014, several areas of the Central and Admiralty districts were blocked for 79 days by hundreds of thousands of protesters as the result of the decision by the Central Government to refuse to agree to electoral reforms, which would have allowed the Chief Executive to be chosen by universal suffrage.   

Subsequently, electoral candidates were finding it increasingly more difficult to stand for public office.  In 2016 Andy Chan Ho-tin was disqualified by the Electoral Affairs Commission to run for a Legco seat because of his views regarding Hong Kong independence.  The political party that he was affiliated with, the Hong Kong Independence Party, was later banned. Subsequently, a first-time candidate also running for a seat in the legislature was banned because the official, was “not convinced” that she had genuinely abandoned her beliefs in Hong Kong self-determination. In all, 6 candidates were similarly disqualified from running from office. 

Then in November 2016, following the oath taking ceremony of two recently elected members of the Legislative Council the government and Mainland officials expressed their anger as to the alleged irreverent tone of oaths sworn by the two young legislators. Subsequently, the Standing Committee of the National People’s Congress reinterpreted the Basic Law resulting in the disqualification of the two elected officials. This act was the fifth such instance in which the NPC had weighed in over the judicial authority of Hong Kong’s Court of Final Appeal since the handover in 1997. 

To try and gain further insight into the rule of law in the absence of democracy, one must understand that under the structure of the government of Hong Kong, the “Chief Executive” is chosen for a term of 5 years by a committee of 1,200 individuals handpicked by the Chinese government. The legislature is made up of 70 seats – a combination of 35 geographical seats chosen by popular vote, as well as the remainder of seats known as “functional constituencies” that are chosen by a very small circle of electors, from constituencies such as the banking, insurance, trade and industry, tourism, textiles and garment, etc – all of which ensure that control of the legislature remain under control of the executive branch.  

Given that no meaningful democratic legislative mechanism exists in Hong Kong, can Hong Kong continue to enjoy the rule of law, while at the same time being under the sovereign control of the People’s Republic of China?

The protest movement (known as the anti-ELAB) first began to get traction in June 2019 as the result of the efforts of Chief Executive Carrie Lam to push an amendment to the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation Bill (the Extradition Bill). 

The passage of the legislation seemed inevitable as the government had a majority of legislators who would approve of the bill.  A number of organizations including the Bar Association, the pro-government Liberal Party, and the Business and Professionals Alliance for Hong Kong, all expressed caution and urged for more time to further consider the bill.  Even a request for a meeting with the members of the legal sub-sector, made in early June, was rejected by the Chief Executive who stated that the members of the Bar Association “did not understand” the proposed legislation. Yet despite these many objections coming from a wide range of sources, the Chief Executive ignored all calls for further discussion and moved to bring the bill to a final vote.  

On June 12, in order to protest the second reading of the bill, protesters arrived at the Legco complex, occupied Harcourt Road, and massed around the Legco grounds.  Although that event was peaceful, police fired multiple rounds of tear gas, pepper spray, and plastic rounds at protesters without prior warning. One person was seriously wounded in the face after having been hit by a projectile fired by police.   Then on Sunday June 9, over one million people participated in a massive protest march from Victoria Park to Central.  Despite this massive turnout, the government remained silent. On the following Sunday, more than two million people marched to oppose the law.   

Following the June 16 march, the protesters released a set of demands including the complete withdrawal of the extradition bill, a retraction of the June 12 protest as being a “riot,” the release of the prisoners arrested, an independent investigation of the police violence, the resignation of the Chief Executive and that the administration consider allowing the Chief Executive to be selected by free elections. To date, none of these demands have been addressed by the administration.  

In reaction to the government’s intransigence in terms of either acceding to these demands or even opening up a dialogue with the protesters, the marches, sit-ins and protest events have continued for some 10 weeks in nearly all districts of Hong Kong. As the protests have continued, the levels of violence used by police against the protesters have also increased.   

On the evening of Sunday, July 21, and following a protest, a group of men (apparently triad gang members) brutally assaulted commuters in the Metro station of Yuen Long armed with bamboo sticks and metal bars. The victims of this mass assault were mostly ordinary citizens who were returning to their homes on a Sunday evening. They were apparently attacked and beaten because they were wearing black (the color of clothing worn by the protesters). Many people were badly injured and 45 of them required hospitalization.  

The triad attack in Yuen Long was shown on film to have been carried out with the complicity of the police, who were seen first leaving the metro station where the assailants were arriving with weapons to attack commuters. The gang members (known as triads) carried out two separate attacks on people in the train station over the course of that evening. Police and armed triad members were also filmed talking together following the attacks that evening. More than 25,000 calls to police were ignored, the police stations closed their gates to the public and the police did not respond to emergency calls for 40 minutes. 

The Yuen Long triad attacks on protesters of July 21 have since been repeated in the districts of North Point and Wan Chai on Hong Kong Island, and also in Tsuen Wan and Tseung Kwan O in which attacks involving knives were carried out by suspected gang members against members of the public.  

These series of armed attacks now appear to be carried out with increasing levels of impunity and an apparent lack of police response.    These actions were also tacitly supported by the spokesman for the Hong Kong and Macau Affairs Office, who condemned the protesters, stated that their actions were pushing Hong Kong toward a revolution, called on the Hong Kong government to punish those involved in organizing present protests “and for Hong Kong residents to resist violent demonstrators and to protect their homeland.”  Yang did not, however, condemn attacks on demonstrators by individuals thought to be triad members.  

Based on statistics released by the Hong Kong Police Force, by mid-August 2019, some 748 anti-government protesters had been arrested, and charged with a range of offenses including riot, while only 25 suspected triad members had been arrested, all of for “illegal assembly” and released on bail.  None of these persons have been charged. 

At the same time, the police force was routinely refusing advance applications for peaceful marches, thus transforming mass events into “illegal assemblies,” in which peaceful protesters could be subject to arrest and detention. 

While in the past few decades, the police had seldom resorted to firing tear gas or resorting to other coercive means of crowd dispersal, they have done so in unprecedented levels during the summer months of 2019, firing not only tear gas, but also plastic rounds, beanbag rounds, sponge rounds and pepper rounds. Increasingly, the police have fired these potentially deadly projectiles directly at protesters, and even aiming for the head.  On August 11 in Tsim Sha Tsui, a female volunteer medical worker was hit in the eye by a beanbag projectile fired by police. On that same evening, police fired tear gas rounds directly into the Kwai Fong and Wan Chai Metro (MTR) stations. 

On Monday, August 5, alone, police fired nearly 1,000 rounds of tear gas at protesters 140 plastic bullets and 150 sponge tipped rounds at protesters in 10 different parts of the territory.  Increasingly during the protests in which tear gas has been used on the narrow streets of districts such as Yau Ma Tei, Kwai Fong, Mong Kok Yuen Long or Sheung Wan, residents were subjected to tear gas while taking refuge in their flats.    

Throughout the summer, the Hong Kong government as well as Mainland officials from the Hong Kong Liaison Office and the Hong Kong and Macau Office in Beijing, have repeatedly used the term “rule of law” as a loaded term, meant only as ending the protests.  In this context, the rule of law is meant more widely as the unquestioning obedience to the authority of the Party State.  It must be stressed that the term, “rule of law” as expressed by Mainland officials has little in common with the complexities of the term as used in the context of liberal democracies.

Putting aside the Chinese government’s demonization of the protesters by linking them with terrorists, advancing this narrow interpretation of the rule of law merely as obedience, demonstrates a singular lack of understanding of the concept. The mere fact of one’s disobedience of a particular law does not in and of itself damage the rule of law, even in the case of a criminal act such as a robbery illegal possession of a controlled substance. Any “damage” to the rule of law is even less applicable in the case of non-violent civil disobedience which by this point is the only remaining means of resistance available to the people of Hong Kong. 

Just as Dr Martin Luther King Jr did not damage the rule of law when he took part in the march against segregation in Birmingham in 1963, the protesters in Hong Kong today are not damaging the rule of law by participating in marches or sit-ins that the police have proclaimed as being “illegal assemblies.” It shouldn’t even have to be stated that what King and the civil rights protesters were seeking to do during the 1960’s was to oppose unjust laws and an unjust system, just as the Hong Kong protesters are opposing a law that would further erode their freedoms. They are also opposing a system that has no political legitimacy to rule over them and no legal means left to express their grievances.  

In 2017, the Chinese Foreign Ministry announced that the Sino-British Joint Declaration signed by representatives of both nations in 1984 as a pre condition for the 1997 handover to Chinese rule under the policy of “one country two systems,” was only of “historical significance” and did not bind the PRC by this point in time. Given ominous this statement by the foreign ministry, it ought to be clear that the Chinese authorities do not consider themselves to be bound over the Hong Kong SAR by either treaty obligations or by international human rights standards.  

But it could be also argued that even in commercial matters, the rule of law has been badly compromised as the result of Beijing’s influence.  Over the course of the anti-extradition bill protests, the Chinese authorities have moved to remove Chief Executives from their posts in two major Hong Kong companies, HSBC and Cathay Pacific. In August 2019, the CEO of the Hong Kong Shanghai Banking Corporation was removed from his post after only 18 months in his post.  It has been speculated the actual reason was HSBC’s cooperation with US authorities regarding the investigation of Huawei’s deputy chairwoman, for bank fraud and sanctions violations.  

The support for the protests that were reportedly shown by a few members of the staff of Cathay Pacific, resulted in the Chinese government through its Civil Aviation Agency to order the carrier to provide details of all employees who had taken part in any of the anti-government protests and that they be banned from any flights to the PRC.  Then on August 16, the CEO of Hong Kong’s flagship carrier, Cathay Pacific was abruptly removed from his job.  The action has widely been thought as being at least in part as the result of pressure from Mainland authorities due to the support given to the protest and general strike shown by some members of Cathay’s staff. 

Following the general strike on August 9, the Chinese aviation authorities imposed a blanket ban on and all Cathay staff members who participated in, or supported what they termed as “unlawful protests.”  The individuals who were found to have participated were dismissed.  

In a third instance of such coercion being exerted by the Chinese government on Hong Kong residents merely for the legal expression of their views, the pro-Beijing news outlet Global Times reported on August 16 that accounting firms KPMG, Ernst & Young (EY), Deloitte and PricewaterhouseCoopers (PwC) were obligated to give an explanation for any employees who had shown sympathy for the protests, as their business reputation has been hijacked by anonymous people who claim to be their employees. 

These actions by the Chinese government and the firms that are under its influence appear to indicate an intention to broaden the assault on the rule into the commercial domain. It would seem if further evidence emerges bearing this out, by now, the leadership of the PRC is not content to confine its interference to the realm of individual liberties and civil society, but seeks to extend its reach to all areas of life.  – Rappler.com

James A. Rice is an Assistant Professor of the Department of Philosophy at  Lingnan University in Hong Kong. He obtained his Master of laws at the University of Cambridge. He is the author of Take Your Rights Seriously – A manual on the legal rights of migrant workers in Hong Kong and the politics involved.