Hong Kong in crisis – an on-the-ground perspective
From merely urging for a withdrawal of a bill to presently calling for “five demands, not one less”, Hong Kongers have been through a tumultuous three months.
The ability of the pro-democracy movement to regain its composure after the government’s military response to the protests can be seen as a signal that they will not repeat the same mistakes they made five years ago in the Umbrella Movement.
It all began in the first week of June 2019.
“I’m afraid tonight might be the last time we can gather here to hold up candles together,” sighed a middle-aged man sitting next to me in Victoria Park in Hong Kong, where hundreds of thousands of people like us attend a yearly candlelight vigil to mourn for those who were killed in the massive crackdown in Beijing’s Tiananmen Square in 1989.
He was lamenting because at least two million peaceful protestors in Hong Kong were fearful that once the proposed extradition bill, which would become known to the world, was passed by the Legislative Council, Hong Kong would no longer be the freest soil in the territory of China. Hong Kong as we know it — with its legal system hinged on the rule of law and protections for fundamental rights and freedoms, such as freedom of speech — would vanish in the blink of an eye.
The two million of us in Hong Kong did not see the extradition bill coming. At the very least, Hong Kong’s high degree of autonomy was to be maintained until 2047, as promised by the Chinese government in the 1984 Sino-British Joint Declaration, a binding treaty which states that Hong Kong people’s way of life shall remain unchanged for 50 years after the handover in 1997. The promise has also been enshrined in the Basic Law, which is the city’s mini-constitution.
Given Carrie Lam’s government’s cold-hearted response to the one million protestors who had taken to the streets on the weekend before the second reading of the extradition bill, we also did not expect that the bill would be suspended and, eventually, withdrawn after more than 100 days of protests. The suspension and eventual withdrawal of the bill must be credited to the thousands of protestors who first took to the streets and persevered despite being attacked with rounds of tear gas and pepper spray discharged by the police on June 12, the day of the scheduled second reading of the bill.
And the rest is history. Hong Kongers and the rest of the world have witnessed the largest and longest social turmoil in the city’s history since its retrocession of sovereignty to China from British rule. Since June, Hong Kong has faced more than 2,000 rounds of tear gas, excessive force from the police, and even terror attacks organized by local triad gangs, while Carrie Lam remains comfortably seated in her figurehead position as the city’s Chief Executive, muttering about not being able to go to the hair salon due to the havoc for which she should be held largely accountable.
Other than police brutality and the government’s defiance to the five demands, what jars Hong Kong people the most is Carrie Lam’s criticisms of the protestors for damaging the rule of law. In fact, those who have participated in the movement over the past three months would definitely tell you that it is Carrie Lam’s government who should actually be blamed for today’s debacle. There is no doubt about that.
To be precise, Hong Kongers know best about how badly our rule of law has been undermined since 1997, and the introduction of the extradition bill was just the last straw that ignited people’s determination to push back.
For people who are unfamiliar with Hong Kong’s legal system, the extradition bill offers a good starting point in understanding how collusive the Hong Kong government and Chinese authorities have been over the past two decades. On the one hand, the extradition bill was portrayed by Carrie Lam and government officials as an opportunity to “close the loophole in the existing law” and subsequently bring justice to the family of the victim who was murdered in Taiwan, a jurisdiction which has not signed any regular extradition agreement with Hong Kong.
On the other hand, the government gradually revealed that the bill was actually driven by a far ulterior motive. Under Hong Kong’s present extradition law, which has been in force since the colonial era, one of the clauses explicitly indicates that any part of China shall be excluded from entering any rendition arrangements of fugitive offenders with Hong Kong. The rationale behind this provision is simple. There exists a judicial incompatibility between Hong Kong and China’s legal systems. Furthermore, entering into any long-term rendition agreements with Taiwan would inevitably touch upon the cross-strait dispute between China and Taiwan. The current law also perfectly illustrates how the idea of ‘separation of powers’ is put into practice in Hong Kong, since all extradition requests submitted by jurisdictions which do not have long-term agreements with Hong Kong have to be jointly approved by the Legislative Council, Chief Executive, and courts. Rather than “closing the legal loopholes”, the bill would instead open the floodgate to many more injustices, thus bringing Hong Kong’s rule of law to an end. China’s poor human rights record — which includes unlawful arrests and detentions, torture, and a 99.9% conviction rate — was entirely ignored by the bill.
For no legitimate reason, the proposed extradition bill would have bestowed more power to the Chief Executive in exercising his/her discretion in approving an extradition request as he/she would no longer need to seek consent from the legislature. Circumventing the role of the legislature in reviewing extradition requests would also have deprived the public of the opportunity to have their democratically elected lawmakers scrutinize the bill with the public’s interests and opinions in mind. Moreover, the power of the courts to act as gatekeepers would have been limited, as they would have been restricted to questioning whether the request was prima facie approvable, and whether a political offence exception could be applied — which underscores the crux of the problem. In a jurisdiction like China, nobody in Hong Kong, be it a local civilian or powerful tycoon, would ever get to know if there is a legitimate case against them had the bill been passed. It was the uncertainty and opacity of the legal system in China that sparked Hong Kongers’ fear of the bill. Thus, the introduction of the bill was a pivotal point, one at which Hong Kongers came to realize that they should stand up against the Carrie Lam government’s attempt to kowtow to Beijing by circumventing procedural justice in Hong Kong once again.
Yes, once again.
The extradition bill is merely the tip of the iceberg. Over the years, we have witnessed how the Hong Kong government arbitrarily defies the rule of law and undermines procedural justice for the sake of Beijing, while Hong Kongers remain appeased by the existence of a constitutional framework.
The constitution of Hong Kong contains a pioneering mechanism that empowers the Chinese’s superior legislative body, the Standing Committee of the National People’s Congress (NPCSC), to interpret provisions of the constitution. Nevertheless, this power is not infinite, as it is supposed to be limited to circumstances that concern state affairs or relations between Hong Kong and China, and has to be initiated by the Hong Kong Court of Final Appeal (HKCFA).
Theoretically, the interpretation mechanism is part of the unprecedented experiment of “one country, two systems”, the success of which would allow China to showcase to the world how two different legal systems could co-exist under the umbrella of one sovereign state. Yet in reality, things turned out to the contrary.
Looking into the five interpretations which Hong Kong has witnessed since the handover, four of them were actually not initiated by the HKCFA. In Ng Ka Ling & Others v Director of Immigration, the case which led to the first-ever interpretation in 1999, it was in fact not the HKCFA, but the then Chief Executive who petitioned the NPCSC to interpret certain provisions after the HKCFA delivered its judgment. Eventually, the HKCFA judgment was overturned by the NPCSC’s interpretation. Outsiders might find that absurd, but it is nothing compared to the latest interpretation with respect to two lawmakers from LegCo, who used slurs to refer to China and declared Hong Kong’s independence when they took their oaths of office in 2016. In that case, the Hong Kong government filed an application for judicial review, attempting to bar the two lawmakers from retaking the oath and assuming office. Ultimately, it was neither the HKCFA nor the Chief Executive but the NPCSC, a Chinese organ, that took the initiative to interpret the oath-taking provision of the Basic Law (Article 104) — while proceedings were still in progress in the High Court of Hong Kong. In the eyes of the majority of Hong Kong people, and of legal practitioners, this case is an absolute disgrace to Hong Kong’s rule of law.
Not to mention the five missing booksellers who were later found to be taken into custody in China or the controversial co-location joint checkpoint scheme at the West Kowloon high speed railway station. It is reasonable to come to the conclusion that the damage which Hong Kong and Chinese authorities have done to Hong Kong’s rule of law far outweighs that caused by the so-called ‘rioters’ in Hong Kong today.
It is insincere for the government to impute the erosion of Hong Kong’s rule of law to protestors’ violence and illegal acts. It is also naïve for Carrie Lam’s government to believe that Hong Kongers can regain trust in both the Hong Kong and Chinese governments simply by setting up a long-overdue ‘platform for dialogue’ with the public and implementing social welfare policies to help the disadvantaged. There’s no smoke without fire.
What is currently happening in the city is partially the result of the Hong Kong government’s refusal to address the people’s demands during the 2014 Umbrella Movement. This defiance by the Hong Kong government can explain the escalation in dissatisfaction of Hong Kong people. The source of today’s deadlock is revealed in the protestors’ demands: the full withdrawal of the extradition bill, the establishment of an independent commission of inquiry, an amnesty for all arrested protestors, a retraction of the characterization of the movement as a ‘riot’, and genuine universal suffrage in elections for the Chief Executive and LegCo. Satisfying all of these demands would undoubtedly require a government that is fully accountable to its people, something that Hong Kongers have been striving for since the handover.
It seems that granting genuine universal suffrage is the most feasible option for Carrie Lam’s government. After all, it is a right stipulated under the Basic Law, something to which each Hong Kong citizen is entitled.