• jeremiahbull

Hong Kong is being throttled

Updated: May 14, 2020

The people of Hong Kong will have trust in governance if the CCP does right by the Joint Declaration.

When Hong Kong’s last colonial governor, Chris Patten, commented on the arrest of three pro-democracy figures in the city on 29th March, 2020, he said it shows that Beijing is “throttling” decency and freedom in the city. Police had arrested Jimmy Lai, the owner of pro-democracy tabloid Apple Daily, on suspicion of illegal assembly at a protest and for allegedly blackmailing a journalist in 2017. Vice-chair of the Labour Party Lee Cheuk-yan and Yeung Sum, an ex-lawmaker and former chief of the Democratic Party, were also arrested for illegal assembly.

As we have said previously in our blogs, since the Sino-British Joint Declaration on the Question of Hong Kong (HK) was signed in 1984 and the handover to China took place in 1997, the Chinese Communist Party (CCP) in control of China's Central government has progressively and systematically increased its grip on the Special Administrative Region (SAR). In order to increase their influence and control over HK the CCP have gradually stripped away democratic elements put in place by Chris Patten's government (see our blog on CCP warfare in HK). This hardly fits with the title given the city: HK is meant to be a 'special' administrative region that exists as part of the People's Republic of China (PRC) under the “One country, two systems” doctrine, established by China as their part of the Sino-British Joint Declaration on the future of HK. It could be that HK is being singled out for special treatment by the CCP, but most people say that the city is becoming more and more like other mainland cities under the control of the CCP - not special or unique at all!

It should be noted that even prior to the handover there were some aspects of governance in HK that were less than democratic (see our blog that explains the history of HK's stillborn democracy). The CCP and its executives in authority have exploited those mechanisms that were already in place, and implemented further controls of its own where it could. Together this has allowed CCP's Central government to directly interfere with the governance of HK and thereby reduced the autonomy and freedom of the SAR. The guarantees given the people of HK in the Joint Declaration have been all but ignored by the CCP.

Patten told members of UK NGO Hong Kong Watch: "The HK government, doubtless once more under instruction from the Communist regime in Beijing, appears to be twisting the law to attempt to frighten the community into accepting the Communist Party’s attempts to bully HK to give up its belief in, and support for, the rule of law and the principle of ‘One country, two systems'." (see our blog on the 'One country, two systems' policy).

What are the CCP's misdemeanours, its crimes against humanity? Can we make clear its ongoing skullduggery, its lies, deceptions and underhanded swindles? What has the party done to usurp, to scheme, conspire, coerce and connive their way into control of HK? If I was a detective, or some kind of crime-fighting sleuth, there would come a time to write up the charge sheet listing the wrong-doings of our felon - the CCP. Taking stock of the damage, the creeping authoritarianism, is essential in the fight back against the CCP, and in the realisation of democracy and human rights in the SAR. It must be remembered that doing this is all about preserving HK's autonomy, freedom and identity as guaranteed under the Sino-British Joint Declaration. Our charges against the CCP are a complex web of interwoven manoeuvres that make for a surprisingly long list:

i) CCP turns back progress

At the time of the handover, the Chinese authorities repealed laws deemed 'inconsistent' with the Basic Law, many of which had been established in the final years of colonial rule by Governor Patten. Written by the CCP, The Basic Law was intended to serve as HK's mini constitution. Strangely, no mention is made of The Basic Law being a mini-constitution in the Joint Declaration. What The Standing Committee of the National People's Congress (NPCSC; 全国人民代表大会常务委员会) did was remove several recently established laws that were more consistent with the democratic conventions of the Basic Law than the older colonial laws. The committee enacted their preference for restrictive colonial laws over the reforms that had carried forward the democratic ideals of the Basic Law provisions. One example of this is that the Patten administration legislated for labour rights and collective bargaining. However, the legislation was cancelled by the provisional legislature upon taking office in 1997. Acting in a repressive manner the CCP has therefore actively sought to eliminate civil rights in HK since the handover.

ii) CCP fails to meet its obligations

The state of human rights in HK were reviewed in the United Kingdom's Fourth Periodic Report to the UN (October 1995). The HK government's slow implementation of basic rights and the government of China's stated policies regarding the SAR then, precipitated great concern regarding the future of rights in the territory. After the Tiananmen Square crackdown (1989) that was widely publicised outside of mainland China, concerns about the CCP's human rights record and its response to democratic movements heightened the anxiety felt in HK.

The March 2019 UN review of HK's adherence to the International Covenant on Civil and Political Rights (ICCPR) stated: "In total, 15 UN human rights treaties apply to HK, with seven of those entailing a reporting requirement. This includes the ICCPR, which has been incorporated into the HK Bill of Rights Ordinance. Article 21 in the ICCPR which accords the right to peaceful assembly has been replicated word for word in Article 17 of the HK Bill of Rights Ordinance. Meanwhile, the ICCPR has been signed by the PRC, but never ratified." (see our blog on the CCP's global threat to human rights)

The Public Order Ordinance (公安條例) (POO) is a HK law that variously relates to the maintenance of public order, the control of organisations, meetings, processions, places, vessels and aircraft, unlawful assemblies and riots and suchlike. There were a number of amendments to the legislation before the handover, but most significantly in 1995 most provisions in the law were repealed by HK's Legislative Council (LegCo) to bring the SAR law in line with the ICCPR. One of the laws the HK government immediately restored after the handover required protests to be pre-approved by the police, yet such laws had already been struck down by the colonial government as being in violation of human rights. The UK was advised to do its utmost to convince the PRC to report on the implementation of the ICCPR in HK, as the PRC is required to do so under the treaty it had signed - the 1984 Sino-British Joint Declaration (for further consideration of the POO see points xx) and xxi)).

iii) CCP puts its own people in HK government

Rather than explain in depth the history of governance and the evolution of laws in HK leading up to the handover, let's stick to a few of the key points. It is important to note that before the handover the CCP had set up the Provisional Legislative Council (PLC; 臨時立法會) that was the interim legislature of HK that operated from the handover in 1997 until new Legislative Council (LegCo) elections in 1998. The PLC was founded in Guangzhou and sat in Shenzhen, China from 1996 (with offices in HK) until the handover in 1997. Needless to say, the PLC was stacked in favour of CCP with its sympathisers or supporters. The Legislative Council set up by Patten to be partially elected by universal suffrage was dismantled by the CCP and replaced by an entirely unelected provisional legislature that had 60 members.

Elections held in May 1998 to fill a new legislature saw only 20 seats directly elected, with the remainder determined by a layered selection procedure designed to ensure maximum representation by pro-establishment parties at the expense of pan-democrats. Today, even how HK gets its Chief Executive (CE) is skewed in the CCP's favour. The Joint Declaration merely indicates that the chief executive will be appointed by the Central People's Government on the basis of the results of locally held elections or consultations. All the finer details of that arrangement were established by the CCP when it wrote the Basic Law,

specifying how the CE is elected from a restricted pool of candidates supportive of the Central Government by a 1200-member Election Committee.

One commentator in 2019 wrote: "It used to be that Hong Kong’s local tycoons had to be assured they could continue to make money because capitalists were seen to be essential to run the city’s economic system. Beijing’s answer was to give these and other pro-China interests sway through embedding them into the electoral systems that select the chief executive and half the legislators. Thus, it is in Beijing’s hands to loosen the grip of vested interests on outdated local policies."

iv) CCP denies people freedom of choice

Sidney Jones, executive director of Human Rights Watch/Asia noted in December 1996: "One fundamental right under international law is for people to freely choose their own government representatives....The British government only belatedly and partially granted that right to the people of Hong Kong, but the Chinese government is determined to take it away. With every member of the provisional legislature handpicked and approved by Beijing, the chances that this body will protect the basic freedoms of expression and association guaranteed under the Basic Law are slim, if exercise of those freedoms incurs China's wrath." She noted that in its first year of operation, the legislature would have the power to enact security laws that could have far-reaching repercussions for human rights in HK; the ultimate check on the constitutionality of those laws will be the National People's Congress in Beijing.

A 2009 article in Journal of Democracy argued that "Hong Kong's political development has lagged in the face of well-documented PRC efforts to impede progress toward direct elections, universal suffrage, and other democratizing reforms that Beijing fears might loosen its control."

Since the handover there have been a number of pushes for greater democracy: an attempt to have a referendum, development of reform packages and blueprints, and mass resignations. It has all been to no avail however, despite basic democratic rights enshrined in the ICCPR, in the Joint Declaration, and in The Basic Law. In 2020, HK protesters are still calling for Universal Suffrage as one of their five demands.

v) CCP works the system to its advantage

The current system of government in HK has often been accused of being toothless, as members of the Legislative Council (LegCo) do not generally directly participate in the drafting and introduction of laws that are instead prepared by the Department of Justice. The role of LegCo politicians in the functioning of the government, besides membership of various subcommittees and oversight of the annual budget, is to discuss and amend legislation before voting on it, but they only indirectly represent the voice of their electors.

A select group of lawmakers called the Executive Council (ExCo) act in an advisory role to the CE. They act as the CE's cabinet, devise policy, present bills to LegCo and play a role in the control of public expenditure and the monitoring of the government’s performance. There has been much criticism, especially since controversies such as the location of the border control for the High Speed rail project, and the Extradition Bill, that ExCo and pro-Beijing legislators have increasingly approved or 'rubber-stamped' whatever legislation they were presented without due consideration.

It's commonly thought that government moves to 'fast track' legislation are attempts to push a pro-Beijing agenda, and to avoid criticism. More insidious than the 'rubber stamping', is the fact that while the ExCo members have oversight of legislation, the public have no such oversight. There is little or no transparency in decision-making processes, and these powerful croneys of the CE are therefore free to coerce other legislators, or engage in their own real life 'Game of Thrones'.

vi) CCP shifts the bases of power to suit itself

Prior to the handover community affairs were managed by The Urban Council (serving Hong Kong Island, Kowloon, and New Kowloon) and The Regional Council (serving the rest of the New Territories). In December 1999, HK legislators voted 31 to 27 to disband the highly autonomous Urban and Regional Councils and pass their responsibilities to the government. For example, the Urban Council had particular powers, including the independent oversight of finances and lands rights, making them influential bodies where elected councillors were effectively able to govern district policies. But after the Urban Council was abolished, the administrative powers were transferred to the Leisure and Cultural Services Department, the Food and Environmental Hygiene Department, the Highways Department and the Lands Department.

The move against these councils was fiercely criticised in that it was seen to restrict the growth of democracy. However, in this post-handover PLC, the pro-establishment lawmakers lead by CE Tung Chee Hwa were the majority. The bill marshaled through the legislature abolished these two democratically elected policy-making bodies, and later on District Councils were put in place instead (see point ix) and x) below) in that same year. The government rejected any public survey or referendum on the issue, saying that it had been studying the issue since 1997, and had received 98 favourable submissions. The self-proclaimed pro-democracy camp dubbed the move "a setback to the pace of democracy" because it was a throwback to the colonial era.

This is just one aspect of a process put in motion that has seen an increase in centralised control of HK affairs. It was a move away from a system that previously delegated authority and employed checks and balances as a mechanism for accountability. It therefore marked a definite shift in the role of government and its policies.

vii) CCP manipulates who has voting rights in LegCo

The HK government operates on a representative system. Specifically, under current arrangements there are 70 members in each term of four years, determined by 35 Functional Constituencies (FC) and 35 members via direct elections by Geographical Constituencies (GC). These are explained in more detail below. Britain and China, created and justified their governance structure in HK – with the FC system as the focal point. Beyond noting that the legislature shall be composed by “elections”, the Sino-British Joint Declaration made no mention of FC. Neither did the Basic Law provide any definition for the FC beyond the name, in its annex.

So, FC were introduced during HK’s period as a British colony. These are professional or special interest groups that include the largest sector groups, as well as some concessionary parts of society — such as the social welfare constituency, as well as the rural sector, which represents indigenous rural villagers. Significantly, the FC gave voice to some of the traditionally dominant sectors of the economy, such as the medical, textiles and garment, real estate and financial services sectors of the economy respectively. To date, the FC have generally ensured the power of the establishment, as most business sectors do not want to upset Chinese central government. Business interests tend to be represented in the FC more than those of the workers or ordinary citizens.

You will recall that HK's PLC at the handover had 60 members. The number of FC and GC that make up the seats in LegCo (Legislative Council) was adjusted in 2009 by increasing the number of GC by five. Also a further five FC were introduced, known as District Council (Second) constituencies. These LegCo members are directly elected by HKers. It is within the 35 proportional representative GC seats, and the five District Council (Second) constituency seats that the proxy battle is being waged between the pro-Beijing and pro-Democracy forces (see our blog on the 2019 pro-democracy District Council electoral win).

This tinkering with the ratio of FC and GC elected by different means served to minimally placate those calling for greater democracy in the SAR, but also paved the way for securing greater support for pro-Beijing initiatives in LegCo. It's a little bit like gerrymandering, I suppose - but with tricky Chinese characteristics! This has to be understood in terms of how special District Council FC operate (see point ix) below).

viii) CCP exercises its own will at the expense of HK human rights

As a background to everything you have read so far, you should understand that although the PRC is a member of the UN Human Rights Council and historically all nations are guided by the United Nations Declaration of Human Rights (UDHR), it is not a legally binding agreement. China even served on the UDHR drafting committee when work began on it in 1946. Still, Article 21 of the UDHR is about people having the right to take part in the government of their country, directly or through freely chosen representatives. It states that the will of the people shall be the basis of the authority of government, and this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage.

It remains a blot on the CCP record that it is so reluctant to grant HK the universal and equal suffrage it was guaranteed in the Joint Declaration. Recently there is growing concern about the PRC's influence in the UN, and how it is perpetrating an organisational shift in how human rights issues are perceived and addressed (we have a blog on that!). We don't think FC fit well with the UDHR, and neither do CCP-appointed legislators or CCP-selected candidates.

Of course the situation in HK is of great concern too! The HK government fails to uphold some of the articles of the UDHR (see our blogs here and here). Significantly the SAR is a signatory to the International Covenant on Civil and Political Rights (ICCPR). It has ratified the convenant through The Basic Law and the HK Bill of Rights, but fails to fully comply in several regards.

A watchdog organisation established to advance human rights in the SAR "The HK Universal Periodic Review Coalition" is made up of 45 civil society organisations. Their March 2019 submission to the UN Human Rights Committee as part of its periodic review process, commented on Article 21 (Right of Peaceful Assembly) of the ICCPR. They noted among concerns: a lack of accountability for the violation of rights during assemblies and misuse of legislation which places restrictions on Article 21 rights. The important thing to note is that the CCP, regardless of its approach towards human rights on the mainland, must allow HK to comply fully with the ICCPR because it's about fulfilling the terms of the Joint Declaration.

The PRC signed the ICCPR in 1998 but has not ratified it.

ix) CCP puts itself at the top of a vertical power hierarchy

Colonial governance in HK at a community level operated with District Boards. Later District Offices were set up, acting as an interface between government and local residents. Initially made up of appointed members (District Officers), some representatives began to be elected in the 1980s. Adopting a typical top-down hierarchical management structure, District Officers answered to the Home Affairs Department. In 1999, two years after HK’s return to Chinese sovereignty, legislation was passed to set up more or less the system that exists now. There are District Council elections for 18 districts; there are 479 district councilors, of whom 452 are directly elected. The remaining seats go to the chairmen of powerful indigenous rural committees.

The District Councils and their councilors are mandated to deal with strictly local matters like adding suburban bus routes or addressing traffic issues. In the 2019 District Council election one candidate’s manifesto promised the reopening of a convenience store. All of the pro-democracy candidates' campaign flyers also mentioned a key protest slogan of the local democracy movement, “five demands, not one less”. District councilors also get to choose about 120 of the people on the 1,200-member committee that eventually get to elect the next HK CE (see our blog on the public perception of District Councils and their work).

x) CCP hides the truth as it continues wrestling for power and control

On the face of things the CCP appear to have control in LegCo by democratic means, but in reality it is achieved with the assistance of dirty money and backhanded means. Between 1 July 1997 and 20 November 2019 the CCP had full control of all the District Councils, and maintained a majority in LegCo. This has meant that sometimes it is difficult for pro-democracy lawmakers to secure a platform to make their opinions heard. Though there are a number of pro-Beijing political parties in HK, there has been allegations and rumours that some of them are funded or assisted in other ways by the CCP - in particular the 'Democratic Alliance for the Betterment and Progress of Hong Kong' (DAB).

The DAB has been accused by pro-democracy media and politicians of providing benefits to certain people, including seafood meals and local trips to outlying islands at prices significantly lower than market rates to win their support. Other allegations include free transport to mobilise people for their cause. However, none of these practices are strictly illegal in HK, and the efficiency of the Electoral Affairs Commission (EAC) is a 'separate' issue. In 2015 a winning DAB candidate in the District Council Election faced a voter fraud investigation after a large number of voter registration irregularities were uncovered by the Apple Daily newspaper. It's clear the party has the support of some businesses.

xi) CCP exploits and corrupts HK

Party affiliations and politics in LegCo have often been echoed in the District Councils, that have sometimes been accused of slavishly supporting the government. Professor Li Pang-kwong, of Lingnan University, says that the problematic framework of the councils, being under the HK government's Home Affairs Bureau, has led them to work too closely with the government. He cites the example of the "copy and paste" Queen's Pier motions passed by thirteen councils to support government decisions as a rubber-stamp, and a clear sign that the District Councils lacked independence. Li recalled a similar government "consultation" on universal suffrage in 2007, in which two-thirds of the District Councils passed a vote in support of its position. After it was revealed that the government was behind the concerted District Councils' motions in 2008 supporting the relocation of Queen's Pier, Albert Ho condemned the government for tampering with District Councils to "create public opinion", and for turning District Council officers into propagandists for their own purposes.

Further criticism of the District Councils has stemmed from councilors absent from their districts, and wasteful spending on glamour projects that have not properly met the needs of the community (see our blogs on Big White Elephants).

xii) CCP blocks opposition

The HK government has been accused of using the EAC to deny members of pro-independence parties the right to run for office. Specifically, in the September 2016 LegCo elections, a growing political movement emphasising localism and self-determination emerged to compete with existing pro-Beijing and pro-democracy camps. Candidates from this movement, which grew out of the 2014 Umbrella Movement, captured six seats. Other pro-democracy parties took 23 seats, while pro-Beijing parties won 40; an independent took the remaining seat.

We have previously compared the actions and behaviour of the CCP with that of a virus (see our blog here), and we see here how it manages to replicate and spread! Out of this single EAC move, came the "Oath-taking saga", and just like a virus it spawned no less than three issues: 1. how the legislator's oath should be taken, 2. about the authority of the EAC returning officer to disqualify potential candidates, and 3. the intervention of Beijing to redefine the rules governing elections in HK.

xiii) CCP redefines the rules

HK authorities responded to the new opposition dynamic by tightening electoral qualification rules, forcing out some lawmakers, and making it increasingly difficult for localist and pro-democracy candidates to win office. In October 2016, after several localist and pro-democracy Legco members altered their oaths of office as a form of protest, the oaths of two newly elected localists—Sixtus Baggio Leung Chung-hang and Yau Wai-chingwere rejected. The NPCSC in Beijing intervened when it issued an unusual Basic Law interpretation that November, requiring oaths to be taken “sincerely and solemnly,” and the High Court then affirmed the two representatives’ disqualifications. In August 2017, HK’s Court of Final Appeal upheld the decision.

This was not the first time that Beijing had given its interpretation of the Basic Law, and the mandate for it to do so under certain conditions is written in the Basic Law. Specifically, Article 158(1) of Hong Kong’s Basic Law provides that the power of interpreting the Basic Law is vested with the NPCSC. It had done so on three other occasions, but the important thing to note here is that the NPCSC did not even wait for HK's independent judiciary to conclude their own deliberations on the oath taking issue before it intervened to put the outcome it wanted in place - to diminish the influence of pro-democracy lawmakers and activists.

xiv) CCP acts as HK judge and jury

In July 2017, a court granted the government’s request to remove four other Legco members who made political statements during their 2016 swearing-in ceremonies—localist-affiliated Nathan Law Kwun-chung and Lau Siu-lai, along with the prodemocracy politicians Edward Yiu Chung-yim and Leung Kwok-hung—even though their oaths had been accepted by LegCo at the time.

In response to the disqualification, Demosisto, the political party which counts Nathan Law and activist Joshua Wong among its members, called the decision the "worst assault on our democracy." In particular the group said in a statement issued, that "More than 180,000 voters had their voices silenced in the legislative body. Demosisto condemns the manifest interference of the Beijing government to cripple HK's legislative power....In light of manipulation of election results by Beijing, it is more important than ever for HK to stay strong and firm against the autocracy." (see our blog on how the world suffers due to Xi Jinping's autocratic ways).

In September 2017, Lau and Leung indicated their intent to appeal the court decision, meaning by-elections to fill their seats would be postponed. By-elections for the remaining four seats left vacant by oath-related disqualifications were held in March 2018, and pro-democracy candidates recaptured only two of these seats.

In May 2018, Lau withdrew her appeal, citing the financial and psychological toll of the lengthy proceedings. In October, Lau submitted her nomination to run in a November by-election to fill the now-vacated seat. However, later that month the EAC invalidated her nomination, citing her past advocacy in favor of self-determination for HK. A candidate aligned with the pro-Beijing establishment ultimately won the seat. Meanwhile, Leung’s appeal of his disqualification was scheduled for an April 2019 hearing.

xv) CCP ignores legal principles

The NPCSC's unusual Basic Law interpretation in 2016, must be seen as both intolerance for the politics of pro-democracy lawmakers, and a move to upset the balance of power within LegCo. While the NPCSC is granted the power to interpret the law under the Articles of the Basic Law, it must meet certain criteria in doing so. Cora Chan, associate professor of Law at the University of Hong Kong has indicated that "Of the four interpretations the NPCSC issued in the past, only the fourth meets all three criteria, she said, and Beijing is not adhering to principles of the law....In line with Leninist legal tradition, the law is viewed by the Chinese Government as a mere tool to facilitate the Party agenda."

The CCP wrote the Basic Law to begin with, then uses it authority to twist and interpret the wording in ways that suit its endgame. If all else fails, as we see with the Joint Declaration, the party just arrogantly pushes on and ignores whatever rules it wishes.

xvi) CCP sabotages itself

Consultations between HK officials and the Beijing government, represented by a Liaison Office in the territory, are largely opaque, leaving the extent of Beijing’s influence on the HK government’s decisions unclear to the public. Despite this, it has become increasingly clear from statements made by CE Carrie Lam that she is duty bound to authorities in Beijing and representations handed down via the liaison office. This in turn undermines the "One country, two systems" model that is increasingly seen to be in need of reform if it is to work properly. Statements made by the Hong Kong and Macau Affairs Office (HKMAO) have undercut the independence of HK's judiciary.

On 4 September 2019 a spokesman of the HKMAO was in breach of the Joint Declaration when he stated publicly: "The Hong Kong government, including the executive, legislative and judiciary branches, as well as all sectors of society must take ‘bridling turmoil and curbing violence’ as the city’s most pressing task and the overwhelming priority.” A similarly abusive directive was issued by the same office on 4 November 2019, calling for a harsher crackdown on protesters, telling the HK government, police and judiciary to “decisively adopt all necessary means to forcefully crack down on various acts of violence and terrorism.”

xvii) CCP is secretive, selective with the truth

In addition, the machinations of HK governance have been seen to lack transparency. CE's have refused to answer journalist questions, and information is released selectively. Paper records of meetings and proceedings are also frequently not archived. Together this shows that the HK government operates in secrecy and without openness, that it is able to grant favour or exercise coercion with impunity, and that it reduces the accountability of officials. Some officials, such as those in the Immigration Department are not required to give any explanation for their arbitrary decisions.

Pro-democracy lawmakers took the HKPF to task over the chemical composition of the tear gas they were dispensing to disperse protests, finally taking the issue to the High Court in January 2020. This came about after protesters and journalists suffered burns, skin irritations and other serious reactions (see this blog concerning an injured first aider as an example). It is serious that despite concern expressed strongly by the public, the police continued using the tear gas - sometimes in confined spaces and ignoring manufacturer's and operational guidelines. The Health Chief's words of reassurance in December 2019 did nothing to calm public fears on the matter.

Two other examples of police intransigence follow: 1) the case of the Indonesian Journalist Veby Mega Indah who was blinded in her right eye when hit by a Police rubber bullet fired at a low angle at a short distance. HKPF has continued blocking legal attempts to establish the identity of the officer involved so that charges canNOT be made. 2) a woman was arrested and taken to Tsuen Wan Police Station where she alleges she was raped by a number of police officers. She underwent a medical examination as part of preparing and lodging a criminal complaint. Her expectation, and that of her lawyers was that it would be investigated with impartiality, in strict confidence, and with respect for her privacy and dignity. Yet the police have instead systematically worked to discredit her and to undermine her complaint. Police have deliberately leaked supposed details of the case and withheld details of her potential abusers.

xviii) CCP uses influence and coercion

HK citizens were outraged to learn in 2016 that the government scaled back housing development on a brownfield site in Wang Chau after talks with rural leaders linked to it, and roundly criticised such “soft lobbying”, or informal consultation. In fact, this is just one example of how the current government has widely employed such a 'soft lobbying' approach because the SAR lacks a clear code of practice on public consultations. This has enabled certain sectors of society, especially pro-Beijing elements, opportunities to lobby for their interests at the expense of those who were never consulted.

Another fiasco involving 'greasy palms' and 'lubricated handshakes' is the controversial "Cyberport" affair, a 24-hectare HK Island waterfront project. At the time (1999) this was an attractive real estate development, but it was awarded to a single property developer without the rigours of the usual government tender process. This happened despite opposition and criticism that the government was distorting the real estate market (see our blog on White Elephant projects). This was clearly a failure of accountability.

There's truth in the saying that "Absolute power corrupts absolutely! I won't go into details here of the murky matters surrounding former HK CE CY Leung, former HK CE Donald Tsang, and current HK Secretary for Justice Teresa Cheng Yeuk-wah who have variously brought unwanted attention to themselves. You should judge things for yourself - don't take my word or theirs as gospel!

ixx) CCP kidnaps people, obstructs journalists

Freedom of the press and publication has been under attack in HK for some time. The Basic Law guarantees a range of freedoms: Hong Kong residents shall have, among other things, freedom of speech, freedom of the press and of publication; freedom of association, freedom of assembly, freedom of procession, of demonstration, of communication, of movement, of conscience, of religious belief, and of marriage; and the right and freedom to form and join trade unions, and to strike.

Firstly, there are the cases involving the Causeway Bay Bookseller disappearances, which was an attempt by CCP to silence its critics in HK. Between October and December 2015, five staff of Causeway Bay Books went missing. At least two of them disappeared in mainland China, one in Thailand. One member was last seen in HK, and eventually revealed to be in Shenzhen, across the Chinese border, without the travel documents necessary to have crossed the border through legal channels.

Secondly, there is the immigration case in which British journalist Victor Mallet was denied a work visa to stay in HK.

In recent HK protests both local and international journalists have suffered attacks and intimidation by Police officers who are not being held in any way accountable for breaking norms, laws and human rights conventions (see our blog on slipping press freedom). In March 2020 the HK Journalists Association issued an open letter to Police Commissioner Chris Tang, pleading for an end to the interference, obstruction, and violence meted out by his officers against reporters. A number of journalists have suffered injuries at the hand of zealous police officers, including an Indonesian reporter who was blinded in her right eye. Another reporter was abducted by police and denied medial attention.

xx) CCP restricts protest and opposition

As stated above, The Basic Law guarantees freedom of assembly. In parallel with this is The Public Order Ordinance (POO) that requires organisers to give police seven days’ notice before protests and to obtain official approval. Generally permission to rally, protest, or march is rarely denied. However, developments surrounding the 2014 Umbrella Movement protests have raised concerns that the government is growing less tolerant of political demonstrations, particularly by groups calling for greater democracy, self-determination, or independence for HK. Increased use of baton charges, pepper spray, and arrests by police as they attempted to break up that year’s protest camps drew criticism, and the encampments also faced assaults by counter-demonstrators, many of whom were later found to have links with criminal gangs (triads) (see our blog titled Lawfare not warfare).

In 2019 many applications for protest marches were turned down by police. Although the largest pro-democracy protests began peacefully, the HK Police Force (HKPF) have frequently come into conflict with demonstrators and shut down their rallies and processions at short notice. Police officers have made an art of kettling, or encircling, their quarry. Usually the police trap and funnel large groups of people inside a park, or a shopping mall, and bar them from leaving. Those inside are not under arrest, and yet they are not free to go. As months of protests have gone on, police tactics have grown more sudden, more violent, more intimidating and more arbitrary against civilian demonstrators, first aiders and the press.

xxi) CCP escalates conflict

It is not unusual for Police to ensnare the unexpected during their operations against protesters. Ordinary citizens not taking part in protest action in an active way and protesters alike have often complained that Police : stopped them and searched their bags/backpack without a warrant or a reason; took their mobile phone or camera; blocked their access to buildings or passage/route on the street; pepper sprayed them in the face without warning; kicked, shoved or pushed them; inflicted actual bodily harm; sexually assaulted them; hit them with their riot shield or Police baton; did not wear uniform, markings or identification to identify them as legitimate police officers; refused to show their Police identification; swore at them, insulted them or offered other verbal abuse. Peaceful protesters and bystanders are routinely labelled 'rioters' and said to be violent. Under the POO a Police charge of "riot", though not well-defined in the statute, currently incurs a much more serious penalty than other charges such as 'disorderly behaviour' or 'unlawful assembly'.

While it's true that some protesters have resorted to violent or extreme acts of civil disobedience, others have acted in self-defence against groups of well-armed thugs. Protesters have a difficult time identifying their attackers, who may or may not show their face, may or may not wear Police Uniform, and may or may not admit they are Police officers.

Protesters have been caught in quickly escalating situations without a means of escape such as in an MTR carriage. There have been mass arrests. People have been snatched off the street and pushed into unmarked vehicles, ostensibly in 'surprise arrests', or Police have stormed private housing estates, restaurants and shopping centres seeking out targets for arrest. On some occasions a citizen would draw police attention just because they were young, and wore black clothes, or a face mask.

Police have routinely overstepped their operational guidelines and the terms of the POO. Many officers chose to enact retribution or 'dispense justice' against protesters, but this is meant to be the role of the courts or judiciary. When Police action has been criticised or questioned in media briefings, HKPF have often orchestrated their response, twisting or manipulating their account of what happened to make themselves appear reasonable or restrained (see our blogs on Police kidnap of a journalist, indiscriminate arrests, and the 'yellow object' incident). The CCP and the CE have expressed support for the HKPF a number of times, and the HKMAO has encouraged both the HKPF and the independent judiciary to crack down hard on protesters as a deterrent.

The CCP has been served notice that it has not been meeting its UN obligations in HK. A letter was written to China as a Member of the UN on 28 June 2019 by four Special Rapporteurs working for the UN (see the letter here). China was given 60 days to reply to the contents of the letter concerning alleged excessive use of force against peaceful demonstrators and human rights defenders, as well as alleged arbitrary arrest of individuals participating in peaceful demonstrations in HK. The letter has drawn no response from China.

In October 2019 medical workers and supporters staged a peaceful rally in Chater Garden protesting human rights violations by HK police and condemning the force for the injuries it inflicts on protesters. An Amnesty International field report on the protests in HK released in September 2019 documented an alarming pattern of the HKPF deploying reckless and indiscriminate tactics, including while arresting people at protests, as well as exclusive evidence of torture and other ill-treatment in detention.

xxii) CCP punishes critics aggressively

In 2016, student leaders Joshua Wong, Nathan Law Kwun-chung, and Alex Chow were found guilty of charges including “taking part in an unlawful assembly” and “inciting others to take part in an unlawful assembly”. They were sentenced to penalties ranging from community service to a suspended three-week jail term.

However, in 2017, the government initiated a rare appeal seeking harsher punishments for the three convicted protesters. This was seen by many as a government attempt to discourage further protest activity. The three protesters then received sentences of six to eight months in jail, with the Court of Appeal instructing lower courts to give greater weight to the need for deterrence when considering similar cases in the future. The Court of Appeal also imposed five-year bans from public office on the defendants. Although the Court of Final Appeal eventually overturned the jail sentences for Wong, Law, and Chow in February 2018, it nonetheless upheld the Court of Appeal’s sentencing guidance for future cases of unlawful assembly.

I won't even go into concerns about the inadequacy of Police holding facilities such as at the San Uk Ling detention centre, or the many allegations against the Police concerning irregularities that occur after arrests are made, inside the police vehicles or at the Police stations.

xxiii) CCP diverts money

Significant government spending on two infrastructure projects can be seen to benefit the mainland more than HK locals (see our blogs on the HK Governments' White Elephant expenditure). Many HK people feel that their government has its priorities wrong and fails to serve the real needs of its citizens.

The High Speed rail project was welcomed and highly anticipated by some. Despite projections of a growing volume of mainland traffic to support the rail line, patronage has continued to disappoint. The problem is that the High Speed Rail is not considered an “essential” project by HK locals, although it’s perhaps desirable for mainland tourists.

The construction of the massive Hong Kong-Zhuhai-Macau Bridge (HZMB) completed in 2018, has been a source of much controversy. Its massive cost of US$18.8billion was shared by the governments of mainland China, Hong Kong and Macau. One complaint has been that the HK government entered into a funding deal with the other governments that put it at a disadvantage. More so, since there are claims that the HZMB basically serves the needs of business elites on the mainland.

xxiv) CCP bolsters itself with pride

For some time the CCP has actively pushed its patriotism campaign in HK. Many have argued that "Loving your country" is communist-speak for obeying the CCP. While we have seen stricter controls on who can stand for election, or how elected officials must take their oath, there has even been noise that civil servants must similarly be effusive about their love of China, and their loyalty to the CE. The independent HK judiciary had the same expectation imposed on them by the CCP (see point xxv).

Civil servants such as teachers and medical staff who were arrested during police action against protesters, or who take part in strikes have had their employment suspended or been threatened with dismissal. Authorities have ridden rough-shod over citizens' freedom of speech, freedom of association, and freedom to strike (see freedoms under The Basic Law, point xi above). In some cases authorities have forgotten that ordinarily people are 'innocent until proven guilty'. In the private sector also, in a growing number of companies and industries, upsetting the CCP can have unfortunate consequences for your employment, as employees of Cathay Pacific and some banks will vouch.

This patriotic push extends into HK's education system which is variously admonished for what the CCP considers its failings, or told what it must include in its curriculum to meet the CCP's expectations. This extends into matters including the teaching of Mandarin in preference to the local language (Cantonese), the perceived dangers of Liberal Studies teaching, the content of textbooks, and national education. In many cases the autonomy of schools and teachers as education professionals has been undermined.

Under the UDHR citizens of HK should enjoy academic freedom, and the rights of parents and of minority children ought to be respected. Chinese and English are both official languages of HK under the Basic Law (Article 9), and the Official Languages Ordinance. However, there is no statute that stipulates the preferred spoken Chinese dialect. English was the sole official language of HK from 1883 to 1974. As the CCP has been increasingly driven by market-economics English has gained importance in HK and on the mainland. In HK many schools use English as the predominant medium of instruction. Putonghua has also acquired instrumental and integrative value in HK, although its use is sometimes resisted by HK residents who have more of an affinity with local culture and identity. CCP is actively carrying out a process of assimilation in HK.

English, Cantonese and Putonghua are required for HK civil servants, especially for the Administrative Officer (AO) and Executive Officer (EO) roles. Thus Putonghua (Mandarin) is compulsory for primary and secondary school education; some of the Chinese lessons are conducted in Mandarin in Direct Subsidy Schools that receive special government funding. In some private sector employment fluency in Mandarin is expected, and this is effectively making locals whose language strength is in Cantonese 'lower class' citizens. In addition, the ruling elite, and those who can afford it, educate their children in schools offering English as the medium of instruction. This gives them an advantage in securing entrance to university and for their future employment. Education for ethnic minorities remains under-resourced.

xxv) CCP dictates the result

The CCP sees no problem requiring judges to love China, and it is especially critical of HK's foreign judges. The CCP has frequently commented on court proceedings in HK and judicial decisions. Reports from mainland China allege that state-owned enterprises now demand that HK judges rule in their favour, particularly in cross-border commercial cases involving foreign entities.

Furthermore, nowadays it is claimed that the HK Department of Justice will no longer prosecute those with CCP connections, even when there is clear evidence of criminal and corrupt activity. CCP-appointed HK politicians openly give government contracts to their friends and get the police to arrest pan-democratic politicians who refuse to vote in their favour. The requirement about "love your country" seriously threatens the independence of the judiciary and HK's economy in turn.

xxvi) CCP fosters and maintains useful myths

A more extreme view concerning the laws of HK is that the much treasured "rule of law" is a fabricated myth that forms part of the HK identity. HK's own Police have been seen to enforce the law selectively. In September 2019, Police were accused of protecting and releasing their supporters while targeting young protesters. Also, as can be seen from several points already raised, judicial independence in the SAR is very much in doubt. In November 2019, a HK high court decision was made to overturn the CE's emergency law ban on face masks as worn by pro-democracy protesters.

Regina Ip, pro-Beijing Executive Council member, said in response: “It effectively means when the government faces a situation of public danger, it does not have an emergency power – that doesn’t make sense! All governments need some power in an emergency.”

She urged the government to appeal, and if necessary to seek an interpretation from Chinese national legislation, the Standing Committee of the National People’s Congress.

Thereafter the CCP condemned the decision and insisted it held the sole authority to rule on constitutional matters in HK. This prompted the HK government to lodge an appeal. Mistrust of both CCP and HK government is rife (see our blogs about the missing trust in governance of HK).

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Both Xi Jinping and Carrie Lam sing from the same song sheet about wanting HK to succeed under ‘One country, two systems’ and a high degree of autonomy. However, given the extensive list of calculated infringements above, their words and notes are decidedly out of tune with reality and simply cannot be trusted.

Chris Patten is entirely accurate in his observation that HK is being throttled. The CCP grip is strangling democracy and governance in the SAR. Human rights are being ignored and compromised. Even the climate for business in HK is in jeopardy, dramatically changing its identity. The legal system, its judiciary and the HKPF have each been hijacked to some extent. The people of HK right now are being brutalised with the assistance of the Police force, by the CE who acts as puppet for the CCP.

The issue at hand now is how and when CCP can be forced to loosen its grip on the SAR so that HKers will be able to breathe fresh life into democracy here.

Since China has breached the Joint Declaration it signed with Great Britain, the UK with the support of the G7 heads of government, must not fall silent when the CCP echoes its much repeated whinge about "interference in internal affairs". After all, HKers know very well how the CCP meddles in HK matters!

Also bodies such as the UN and NGOs worldwide each have a continuing part to play in reducing the CCP stranglehold on HK. The autonomy of HK is as much at stake as its future role as an international trade and finance centre, as the effectiveness of its government, as its human rights standing and the freedoms of its citizens.

With the added support of the U.S. through its 'Hong Kong Human Rights and Democracy Act', coupled with globally enforced Magnitsky sanctions, there is yet hope for HK, for its people and for democracy. It would be very timely if an independent commission of inquiry into police use of force was begun, and other concessions were made to the pro-democracy movement's 'five demands'.

A public referendum for the people of HK, as suggested by Wethepeopleofhk.com would provide a mechanism whereby the wrongs of the last 30 odd years can eventually be put right (see our blogs on referendums here and here). This is about releasing the stranglehold on the city and charting the way forward. The pressure on CCP must be maintained and increased. It ought to reflect on its blind response to criticism and controlling ways. The SAR can be a productive part of the PRC if Beijing changes its HK strategy, if it respects HK's autonomy, and undertakes reform of the 'One country, two systems' model and the way it is applied. Doing the right thing under the Joint Declaration will give HK people trust in governance.

Jeremiah B.

(See our blog about the missing trust in HK's governance)

Footnote: Hong Kong protesters are human rights defenders, not rioters

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