Hong Kong: Law Making and Law Breaking

Law making. Law breaking.

These topics were the focus of much of the news coverage of Hong Kong during the most recent Year of the Pig, which began in early 2019. Did things change once the Year of the Rat began in January of this year? Yes – and no.

Let us explain. Lawmaking and lawbreaking are as crucial to this year’s news cycle as they were to last year’s, but there has been an important shift – one that reveals a great deal about the current dire situation in Hong Kong, the Pearl River Delta metropolis that became a British colony in the 1840s and then, in 1997, transitioned into a special administrative region (SAR) of the People’s Republic of China (PRC).This shift is the widely perceived breakdown of “one country, two systems,” the framework that is supposed to allow the city to enjoy a “high degree of autonomy” for 50 years after it became an SAR. It illuminates a key new dividing line between past and present when it comes to the relationship between Hong Kong and the Chinese Communist Party (CCP). Throughout the Year of the Pig, many referred to the framework that undergirded that promise as having been battered, but not fully destroyed. Now, at least in political terms if not necessarily economic ones, the framework is widely seen as having been completely destroyed by the distressing developments of the first half of this Year of the Rat.

To get a sense of how the ground has shifted, we need only consider the vastly different ways that stories about making and breaking laws intertwined on the fourth day of June in both 2019 and 2020. June 4 is no ordinary date: It marks the anniversary of the 1989 massacre in Beijing that put an end to a dramatic wave of protests for which the epicenter was Tiananmen Square. There were significant demonstrations that year in cities across the mainland and in Hong Kong and Macau, which was then still a Portuguese colony but became an SAR of the PRC a decade later. Commemorations of June 4 have been verboten across the mainland since 1989, but have taken place regularly in Hong Kong and Macau. By far the biggest June 4 commemorative vigils have been in Victoria Park on Hong Kong island, where more than a hundred thousand people gathered for the 2019 commemoration and a few thousand gathered for its 2020 iteration.

How did making and breaking laws figure in the news on June 4, 2019? The answer is simple: Via reports of popular anger over the extradition bill that Hong Kong Chief Executive Carrie Lam had proposed and planned to seek legislative approval for soon after the vigil. Bear in mind that Lam was a widely disliked figure – but at that point not as broadly reviled as now – who had taken on the highest post in the Hong Kong government in 2017 after being selected via a pseudo-democratic process in which fewer than 2,000 residents of a city of over 7 million were allowed to cast votes. In 2019, Lam presented the extradition bill as a straightforward effort to try criminals for committing serious crimes. In arguing for it, she brought up a murder case involving a perpetrator who should be tried for his crimes in Taiwan, but could not be because of the lack of extradition procedures to have him sent there from Hong Kong.

Critics of the bill saw it in a different light: As a case of lawmaking that would have little impact on most forms of lawbreaking, but instead would largely be used by Beijing to get activists brought across the border to stand trial in the opaque mainland legal system. The bill, they claimed, would not strengthen but undermine the rule of law in Hong Kong. It would make a mockery of the idea that Hong Kong would truly enjoy a “high degree of autonomy” until 2047, which was what it had been initially promised in the “one country, two systems” framework outlined in the Sino-British agreement. That agreement was signed in 1984, which until now stood out as one of the two most consequential Years of the Rat in modern Hong Kong history, with the other being the one lasting from early 1840 until late January of 1841, when the British first made moves to bring the port under their control.

Such sentiments came through in the speeches given at Victoria Park at the 2019 vigil. Many looked back in time to June 4, 1989, when soldiers killed at least hundreds and probably thousands of protesters and passersby near Tiananmen Square. There were also many uses of a globally iconic photograph taken on June 5, 1989 showing a lone worker standing his ground before a line of tanks. There were materials passed out that focused on how the extradition bill could harm not just true lawbreakers but also activists – an issue on the minds of many because some prominent proponents of civil disobedience were unable to come to the vigil, having recently been imprisoned for taking part in mostly peaceful protests in 2014. The vigil ended with speakers calling on the crowd to come back onto the streets to convince Lam to withdraw the bill.

The issue of what really counted, or should count, as breaking the law continued to be of intense concern in the following weeks. The city witnessed giant marches against the extradition bill and over time also against police brutality – via the use of tear gas, later rubber bullets and bean bag shots – during a wave of protests that were largely peaceful, but punctuated by some acts of violence. This violence usually involved attacks on property and symbols, but in some rare cases went further. Several individuals were physically assaulted and one person was set on fire during an altercation with protesters, incidents that mainland media and supporters of Beijing within Hong Kong have tried to present as typifying the movement. Most residents condemn such actions, and also believe that protesters have not been excessively violent overall during the anti-extradition bill protests.

Those weeks also saw the start of a battle of words that would continue throughout the Year of the Pig. On one side, supporters of the protests chided the authorities for doing nothing to stop police violence and turning a blind eye toward thugs – an obvious form of lawbreaking. This grievance helped sustain the movement – even after Lam gave up on her lawmaking effort, and in September finally withdrew the extradition bill. On the other side, the movement’s opponents insisted that activists were continually rioting and breaking laws. Public opinion surveys showed that a majority of the local population consistently viewed the lion’s share of responsibility for violence as lying with the police.

Tensions reached a crescendo in November during intense clashes that revealed both how high tensions were running and how varied views of lawbreaking could be across political divides. As one pro-independence protester in his early 20s put it, from Beijing’s perspective, there was really no concept of rule of law in Hong Kong that couldn’t be overridden, and so anything could be interpreted as lawbreaking.

“The law is used to oppress other people, or rationalize or provide reason for them to jail you or prosecute you,” he said, adding that he was arrested and detained for 40 hours after participating in protests in November at Hong Kong Polytechnic University, during a 12-day siege when security forces arrested hundreds of young protesters. “Through this movement, I realized that serious consequences can take place. Being disappeared, being murdered – every worst case can happen. In the long term, I see them using the national security charge to charge you with whatever.”

Flash forward to June 4, 2020, and his fears seem to have further materialized. The lawmaking story of the day was that the Hong Kong government finally formally criminalized showing disrespect for the national anthem of the PRC. This was something that people had long expected to happen, as a national anthem law, transgression of which could carry a penalty of up to three years in prison, was passed on the mainland in October 2017 (and inserted into Hong Kong’s mini-constitution two months later). Officials had made it clear that similar legislation needed to be passed by Hong Kong’s government as well. Still, when the law passed locally, it was one more signal that what used to be a chasm separating freedom of expression in Hong Kong and on the mainland was narrowing to a mere gap.

Lawbreaking was in the news that day because, while a vigil was held in Victoria Park that evening per usual, for the first time it was held without official approval. This made it an illegal gathering, and afterward some attendees faced charges for participating. The reason the government gave for denying approval was that rules were still in effect to limit the spread of COVID-19. The pandemic, however, though surging in the United States and various other places in early June, was largely under control at that point in Hong Kong. By then, religious gatherings in the city were permitted. This made some see blocking the vigil as a political move. Permission to hold a vigil in Macau was also denied, even though COVID-19 was even more contained there than in Hong Kong.

Hovering in the background of the 2020 vigil was a fear that commemorating the June 4 Massacre would, in future years, be treated as illegal without even the specter of a pandemic. This was because late in May, Beijing made it clear that the CCP was going to impose a National Security Law (NSL) on Hong Kong. It had previously waited for the Hong Kong government to come up with its own rules on sedition – something Hong Kong tried to do in 2003, triggering protests that, as happened with the extradition bill, stopped the lawmaking process in its tracks. Now Beijing was no longer willing to delay.

The move has been criticized by many scholars of Chinese law. Here is how Jerome Cohen, widely seen as the leading American specialist in the field, put it in The Diplomat on June 17: “Article 23 of the Basic Law plainly states that it is Hong Kong’s Legislative Council (LegCo)  –  not the NPC or its Standing Committee  –  that is required to adopt a NSL for the SAR ‘on its own,’ i.e., without central government interference.” Cohen's wording suggests that he views the NPC’s passage of the NSL as something that is ostensibly law making but is actually in a sense law breaking – a move that breaks not just any law, but the Basic Law.

One Country, Two Systems, and Four Years of the Rat

The origins of the promise of Hong Kong having a “high degree of autonomy” from 1997 until 2047, as we have noted, can be traced back to 1984, a Year of the Rat, and its demise can be fixed in another, 2020. What was the state of this promise in 1996 and 2008, the two Years of the Rat that came in between?

In 1996, with the handover just around the corner, hopes and fears for the viability of “one country, two systems” ran high. Some predicted Beijing would break the promise as soon as it took control; others opined that things would go smoothly and that over time it would be easy for Hong Kong to stay free – as the mainland would gradually become more and more like it. Neither of those scenarios happened.

As for 2008, this was in many ways the last time that the framework seemed in good shape. Consider the Olympics. They were called the “Beijing Games,” but not all events were held in the capital, which meant that Hong Kong could share in the country’s glory. While prior to 2008, there had been important protests triggered in part by a sense that Beijing was reneging on its promise of allowing the city a “high degree of autonomy” until 2047, it was still much easier to argue that both halves of the “one country, two systems” formula had something to offer.

The handling of the Olympics suggested that being part of the “one country” had its pluses. As for the “two systems,” a wave of 2003 protests staged to block tighter controls in Hong Kong, via an anti-sedition bill, succeeded in getting the local authorities to reverse course. The fact that the hated bill was stopped in its tracks suggested that Hong Kong’s leaders were listening to the local populace, as well as Beijing.

A Decade of Drama, a Decade of Difficulties

In the decade that followed the Olympics, issues of lawmaking and lawbreaking increasingly became entangled in a tug of war between various political forces. This locked the city into a state of perpetual crisis – one that, from time to time, triggered mass social movements. Beijing’s attempt to introduce national education reform in 2012 was one instance of failed lawmaking that had crucial consequences. Under the reform, Beijing sought to implement a mandatory curriculum similar to the patriotic education taught in the mainland, which critics argue glorifies the Communist Party while diminishing major political events such as the June 4 Massacre. After more than 100,000 took to the streets, the curriculum reform was formally shelved.

But the crisis wasn’t over: The bill galvanized a generation of Hong Kongers who, prior to 2012, were relatively apolitical. The protests were led by “Scholarism,” a group of secondary school students that included Agnes Chow and Joshua Wong, both of whom have played leading roles in later struggles as well.

Bobby, not his real name, was one of the young protesters who took part in a sit-in during the 2012 protest movement. He was 14 years old at the time. “We all believed that this kind of protesting will [sic] change the government’s decision, and indeed it did,” he said. “People were rational, peaceful, and nonviolent. The government [was] at least accountable to the voice of the people. We had a way to voice our opinions. It was enough for Hong Kong people, because [we] were not very political.”

Now 22, Bobby has been taking part in the recent protests.

In many ways, the failure of lawmaking in 2012 enabled young people to realize their political power and, in turn, showed Beijing that they were a force to be reckoned with. Late that year, Xi Jinping rose to power as head of the Communist Party, an ascension that ushered in a new era in Chinese politics, including a tightening of the central government’s grip on the city. Less than two years after Xi’s rise, there was again an attempt at lawmaking that provided a catalyst for a massive youth-led campaign, which many look back on as a pivotal turning point in Hong Kong’s pro-democracy movement. Initially called Occupy Central, it became known as the Umbrella Movement or Revolution, in honor of the umbrellas that protesters used to defend themselves from the pepper spray, tear gas, and rubber bullets fired by police.

After Beijing decided it would allow universal suffrage for the chief executive elections in 2017 – but only if candidates were pre-screened by a pro-Beijing committee – hundreds of thousands protested, occupying the city’s busiest districts for 79 days. In a controversial “White Paper on the Practice of the ‘One Country, Two Systems’ Policy,” Beijing stipulated that Hong Kong leaders and politicians should be “above all patriotic,” and declared it had “comprehensive jurisdiction” over the city, which enjoys autonomy “solely from the authorization by the central leadership.” In essence, the document spelled out China’s complete power over the rule of law in Hong Kong, and was met with public outrage. In the months that followed, mass protests erupted after students boycotted classes for a week and took part in a sit-in at the government headquarters, which eventually ended in violent clashes with police. For the first time, officers fired tear gas onto mostly peaceful and unarmed young protesters en masse, shocking the community and the world.

Seeing Beijing’s terms as unacceptable, protesters broke the law in a bid to push for what they called “genuine universal suffrage” and were eventually restrained through judicial actions taken by the government to end the stalemate. The failure to push Beijing to amend the law in a manner that would grant residents “true” universal suffrage, and the central government’s declaration of total control over the local system, ushered in an era of disillusionment that caused many to lose faith in not just the local rule of law, but also “one country, two systems.”

Raymond Yeung, a former secondary school teacher who was blinded in one eye after being hit by a police projectile during a protest last June, saw this transformation rapidly take place among the city’s youth. He taught liberal studies, a high school course that last year came under attack by Beijing officials for radicalizing young Hong Kongers, at the elite Diocesan Girls’ School and resigned in early July after his contract was not extended. Reflecting back on the politicization of students in recent years, Yeung told us that his students and young people in general have been feeling increasingly hopeless about the city’s political future. Such despair has also been exacerbated by the growing crackdowns on academic freedom. To reign in the city’s unruly youth, Beijing has also signaled it will push forward patriotic education moving forward – a move that Yeung points out already faced tremendous challenges in 2012 and would be even more difficult to implement in today’s more globally connected Hong Kong, at least in the short term.

“They try really hard to fight for demands, but the effects are not obvious,” Yeung said. “The reason why students would risk their health and time and life [to protest] is that they see there’s a strong problem in our political system. They feel that if they don’t do this, there’s no opportunity. If we don’t tackle the root cause of this problem, the situation will not help.”

The years between 2015 and 2019 saw a smattering of protests, lawbreaking, and the rise of localism – a movement advocating for autonomy and even independence from China – as the city’s freedoms were steadily eroded. Perhaps most significantly, Beijing’s actions in the city were declared to be lawbreaking for the first time by Britain, co-signatory of the 1984 Sino-British Joint Declaration that guaranteed Hong Kong’s relative freedoms for 50 years following the 1997 return to Chinese rule. Following the late 2015 disappearance of five booksellers publishing salacious titles about Chinese leaders – and their subsequent reappearance in the mainland in Chinese custody – Britain’s Foreign and Commonwealth Affairs office announced a “serious breach” of the declaration that “undermines the principle of ‘one country, two systems’” and places Hong Kong freedoms under “unprecedented pressure.” Meanwhile, hundreds clashed with police in the Mong Kok district after authorities attempted to close down a nighttime food market, where hawkers traditionally sell local snacks for the Lunar New Year. The violent night became known as the “fishball revolution,” in which even the city’s snacks became a symbol of political resistance.

The limits of the law were tested again later that winter, when Beijing employed a rarely used power to reinterpret the city’s constitution and rule that oaths by lawmakers need to be “sincere and solemn.” The move came after two recently-elected legislators from the localist group Youngspiration displayed banners reading “Hong Kong is not China” and swore during their oath-taking ceremony. The two legislators – Yau Wai-ching and Baggio Leung – and several other pro-democracy lawmakers, including prominent Umbrella Movement activist Nathan Law, were swiftly disqualified and barred from taking their seats in Hong Kong’s parliament.

The incident, referred to as “Oathgate,” was a fierce clash between lawbreaking and lawmaking that caused many of the city’s young protesters to lose faith in traditional politics and give up reforming Hong Kong through the political system. For one 22-year-old protester who volunteered for Youngspiration during the election campaigns, Oathgate highlighted the need for more assertive tactics that went beyond the system – and beyond the law. “At first, independence was just a thought. I really didn’t think it was realistic. But in these 2-3 years, the situation [has become] very different,” he told us. “I started to have a feeling that independence is something that we need very soon, or should be promoting.”

Back to the Present

Where does this leave us in the middle of 2020? What will take place during this summer of discontent?

The grievances that fueled last year’s protests have not disappeared. So when it comes to a desire to resist, nothing fundamental has changed between the Year of the Pig and the Year of the Rat. One sign of this was the large turn-out in the primaries held in July to select pro-democracy candidates to run in the upcoming Legislative Council elections – an event that was widely seen as a de facto referendum on Lam and her policies and declared “illegal” by Beijing.  

In other ways, however, Hong Kong is now a very different place. The National Security Law, which grants Beijing broad powers to crack down on political dissent on a previously unimaginable scale, has made all forms of political expression decidedly more dangerous than at any point in the city’s past. As we began writing this essay in early July, for example, many protesters had already been arrested for various crimes under the law, including holding up blank pieces of paper designed to highlight the city’s censorship. This was done as an act of defiance, but seemingly via a method that did not utilize any of the growing number of words that authorities have deemed suggestive of subversive intent. 

By the end of July, there were more ominous signs. For example, representatives of Lam’s government released public statements suggesting that the primaries could potentially be seen as a subversive activity that violated the National Security Law. This, combined with similar statements from Beijing indicate that going forward virtually any form of resistance could be treated as illegal under the new law. 

So much has happened in the first half of this Year of the Rat that we hesitate to speculate how, by the time it ends, the alterations of the Hong Kong landscape will be viewed – let alone how historians of the future will look back on it. We think it likely, however, that a view already being expressed by some could emerge as a consensus: Namely, that this was the year when it became clear that Hong Kong has limited autonomy, and that crucial lawmaking and decisions about what is and isn’t lawbreaking are ultimately determined by rulers in a capital far away, not by local actors. If this is indeed how the current moment comes to be seen, historians looking back can note that a city that began to be incorporated into an empire whose capital was London at the end of one Year of the Rat, in 1840, was brought fully into an empire whose capital is Beijing during another, in 2020, almost two centuries later.