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Growing Tensions Over Hong Kong's Autonomy

BLOG - 11 May 2020

After massive protests erupted in Hong Kong in 2019 against an extradition bill put forth by the government (eventually withdrawn on September 4) and increasingly against police violence (denied by the government, but well documented by the press and various NGOs), the overwhelming victory of pro-democracy forces in the November district elections allowed for a relative de-escalation. Although fear of the epidemic did not bring protests to a halt (health workers, for instance, went on strike to demand the closure of the land border with China in late January), for a time, political considerations seemed to have been pushed to the background.

In recent months, focus has begun shifting to the upcoming elections for the Legislative Council (LegCo), scheduled for September 2020. The Democrats have placed high hopes on these elections. Thirty-five seats are directly elected by proportional representation in five geographical constituencies. In addition, each voter also has a second vote: 30 seats are elected in functional constituencies, representing various professions and vested interests, and the remaining 5 "super seats" are elected under proportional representation throughout the territory by all voters who do not vote for in any other functional constituency (only district councillors may run for the "super seats").

The pro-democracy camp hopes to win one more seat in each of the geographical constituencies, and one or two additional seats in the functional constituencies with respect to 2016, to reach a majority of more than 35 seats.

While in 2016 the Democrats won a narrow victory in the geographical constituencies, with 19 out of 35 seats, they have never managed to break through in the functional constituencies, taking only 7 out of 30 seats, as well as 3 out of 5 "super seats" in 2016. Currently, due to the "disqualification" of LegCo members at the initiative of the Hong Kong Government for allegedly breaching their oath of office, the democrats only hold 24 of the 29 seats they originally won in 2019. Buoyed by the results in the district elections (in which it took 57% of the popular vote), the pro-democracy camp hopes to win one more seat in each of the geographical constituencies, and one or two additional seats in the functional constituencies with respect to 2016, to reach a majority of more than 35 seats.

Meanwhile, Beijing has drawn its own conclusions from the events of 2019. A paragraph on Hong Kong was included in the resolution and communiqué of the 4th Plenary Session of the 19th Central Committee in November 2019. This paragraph reaffirms the main lines of Beijing's "comprehensive jurisdiction" over Hong Kong and the urgent need to draft local legislation on state security, as stipulated by Article 23 of the Basic Law, but never carried out so far. In January 2020, the two main officials in charge of Hong Kong within the Party-State system, the Director of the Hong Kong and Macao Affairs Office (HKMAO) of the State Council, Zhang Xiaoming, was replaced by Xia Baolong, and the Director of the Central government Liaison Office in Hong Kong (CLO), Wang Zhimin, was replaced by Luo Huining, an extremely high-ranked cadre for this position and rumoured to have been chosen by Xi Jinping. Luo Huining's first task is undoubtedly to prevent another successful outcome for the opposition in the parliamentary elections at all costs, and more generally to implement the 4th Plenum resolution.

Just as Hong Kong began to loosen its anti-epidemic restrictions in mid-April, a series of interventions by the pro-Beijing camp caused renewed concern over the future of Hong Kong's autonomous status. The Hong Kong and Macao Affairs Office in Beijing on April 13, then the Liaison Office on the next days issued statements attacking pro-democracy LegCo members who were paralysing the House Committee of the Legislative Council, which must approve all bills for plenary readings. They particularly targeted Dennis Kwok, the representative of the legal sector and acting chairperson of the House Committee. By entertaining all requests by members to take the floor, Kwok had been "filibustering" the election of a committee chairperson for six months, thus delaying the adoption of any new laws. Beijing accused him of breaking his oath of office, arguing that the democrats are holding the Parliament hostage. Beijing’s core concern is surely the National Anthem Bill, which was added to Annex III of the Basic Law of Hong Kong in 2017, where a small number of national laws that apply to Hong Kong are listed. This law then had to be translated into local jurisdiction but the bill submitted by the Hong Kong government in early 2019 has been stuck in LegCo for over a year.

This intervention by Beijing coincided with two other incidents. On April 15th, China’s National Security Day, Luo Huining, Director of the Liaison Office, as well as some other pro-Beijing figures, gave a speech urging Hong Kong to strengthen its legal arsenal against national security breaches, and calling on every citizen to fight against foreign forces seeking to destabilise China. This speech rekindled speculation that Beijing was prepared to push again for National Security legislation under Article 23.

Beijing’s core concern is surely the National Anthem Bill, which was added to Annex III of the Basic Law of Hong Kong in 2017

In an apparent coincidence, on the same day, Reuters reported that Hong Kong judges were increasingly concerned over the pressure exerted by Beijing on the legal system. These concerns are also linked to the upcoming retirement in early 2021 of the Chief Justice, Geoffrey Ma, a widely respected liberal who is expected to be replaced by Andrew Cheung, understood to be more sympathetic to Beijing. Subsequently, Geoffrey Ma issued a formal denial of the allegations in the Reuters report.

On April 18, 15 prominent pro-democracy figures were arrested at their homes and released on bail, on charges of participating in unauthorized demonstrations during the anti-extradition movement. As the prosecution comes directly under the Department of Justice and seems less and less insulated from political considerations, these arrests were not unexpected, but the choice of figures and dramatic staging of the arrests indicate an attempt to intimidate the opposition. Among them were historic leaders of the pro-democracy camp such as Martin Lee and Margaret Ng, as well as younger political figures; several of them had been singled out by Beijing for seeking political support in the United States or Europe.

The debate on Beijing's interventions then escalated sharply. Accused of dereliction of duty, Dennis Kwok, echoed by others, pointed out that according to Article 22 of the Basic Law, no department of the Central Government is supposed to "intervene" in Hong Kong's internal political affairs (with the exception of military or diplomatic matters which are not within Hong Kong’s purview). The Liaison Office then responded by arguing that it is not a "department" of the central government, but that it represents the central government itself in ensuring the "supervision" of Hong Kong and the smooth running of the "one country, two systems" formula. The Hong Kong government, apparently caught unprepared, issued three successive press releases on April 19 (the last one late on Sunday night), contradicting itself on the status of the Liaison Office, and the question of whether it is governed by Article 22. It is noteworthy that Article 22 is cited in the statutes of the CLO presented to LegCo in 2000, establishing its status under Hong Kong law, but not in the corresponding decision of the State Council under Chinese law.

The Hong Kong Bar Association and pro-democracy lawyers such as Johannes Chan subsequently condemned what they viewed as an arbitrary interpretation of the Basic Law, with serious consequences for Hong Kong's autonomous status. On the other hand, pro-Beijing personalities such as the former Chief Executive C.Y. Leung or the legal scholar Albert Chen - member of the Basic Law Committee - pointed out that, according to Article 12 of the Basic Law, Hong Kong is a special administrative region directly under the central government, and criticising the "constitutional crisis" caused by the opposition in LegCo. Finally, on April 21, the Hong Kong and Macao Affairs Offices of the State Council in Beijing issued three further statements: one of them to defend the right of supervision over Hong Kong, a second one to support the Hong Kong police and the arrests conducted on April 18 (singling out Martin Lee and Jimmy Lai for meeting with US officials) and a third one to once again accuse Dennis Kwok of breach of oath.

Four ministers in the Hong Kong government were removed, a move attributed to Beijing by several pro-democracy politicians.

Shortly afterwards, four ministers in the Hong Kong government were removed, a move attributed to Beijing by several pro-democracy politicians. In particular, Erick Tsang, who as Director of the Immigration Department had repeatedly denied entry into Hong Kong to people deemed undesirable by Beijing, replaced Patrick Nip as Secretary for Constitutional and Mainland Affairs.

The epilogue to the saga came on May 8, when the pro-Beijing members of the House Committee broke through the filibustering by the pro-democracy camp. The outgoing pro-Beijing chairperson of the committee, Starry Lee, acting on disputed legal advice, affirmed that she had the authority to deal with other urgent matters, pending the election of a new chairperson, and had protesting democrats removed from the chamber. The remaining members then approved 14 held-up bills, including the National Anthem Bill, to move on in the legislative process. In hindsight, Beijing’s irate interventions seem to have been targeted at goading the pro-establishment camp into action in order to pass the National Anthem Bill before the end of the parliamentary session.

It is too early to draw any definitive conclusions from this turmoil. The 15 arrested activists will have the opportunity to defend themselves in court. Dennis Kwok has indicated that he expects to be "disqualified," but a legal procedure remains unlikely before the elections. For the time being, the Central Government continues to advance its "comprehensive jurisdiction" over Hong Kong, in keeping with the 4th Plenum resolution, openly claiming the right to "supervise" local matters. Similarly, Beijing is not afraid to speak out on the subject of court proceedings under way in Hong Kong or on rulings made by judges. But Beijing's interventions also reflect the authorities’ growing nervousness ahead of the LegCo election.

The pro-democracy camp aims to capture a majority of seats for the first time - a difficult goal, but possibly just within reach. It has also indicated its intention to use LegCo’s power to approve the annual budget as a tool to pressure the government into making concessions on the "five demands" of the 2019 anti-extradition movement (including establishing a Commission of Inquiry, which LegCo has the power to decide, and advancing universal suffrage). An election victory in this context would undoubtedly be viewed in Beijing as another "constitutional crisis" that would make national security legislation all but impossible in the near future. Beijing is therefore probably preparing the ground for further disqualifications and intimidation of the opposition. However, forceful interventions could also have the unwanted effect of further mobilising the population. Re-launching the debate on Article 23 would undoubtedly lead to more mass demonstrations. A suspension or serious challenge to fundamental freedoms would have consequences for the economic and financial status of Hong Kong, which has been recovering from a difficult year, but is likely to benefit from its highly effective response to Covid-19. In any case, Beijing's presence in the territory continues to grow and is being increasingly less constrained by the texts supposed to regulate it.

For international observers, ensuring that the LegCo election takes place in a fair and free manner should be a core objective. While voter fraud has historically not been a major issue in Hong Kong, "disqualifications" of both candidates before the elections and elected LegCo members afterwards, is a growing concern that warrants close observation by international as well as local legal experts.

 

 

Copyright : Anthony WALLACE / AFP

 

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