• jeremiahbull

Lawfare not warfare

Updated: Jun 11, 2020

Content Warning:

Contains use of weapons, nasty repression, violence, villainy and other elements of war.


Every time protesters in Hong Kong (HK) come into conflict with the Police, legislators, or blue-ribbon folk who willingly debate the pro-Beijing, pro-Chinese Communist Party (CCP) line of things you can be certain that arguments soon decline into disputes about people's rights (see our blog on the conflict between blue and yellow factions in HK). While pro-democracy protestors often resort to a rights-inspired discourse to legitimise their actions, the HK Special Administrative Region (SAR) government usually characterise the protest movement as a violent and 'illicit campaign'. There are some who don't believe that HK people would so earnestly fight for 'democracy, freedom and human rights', and they are confident that the months of protest have been propagated by a foreign force.


The HK Chief Executive (CE) and others contend that anti-government protestors threaten the community’s most praised value – the rule of law. What they really mean is that protesters should go home, obey the law, obey the police and be compliant. Therefore, the HK government asserts rule BY law. Others argue that having freedom of speech doesn't give protesters' the right to barricade the streets or vandalise the MTR stations, however aggrieved the demonstrators feel (see our blog on protest action against the MTR and other grievances they have).


It seems clear to me that this war over 'rights' on the one hand, and 'the rule of law' (according to the government) on the other is merely a smoke screen. People in HK are fighting against a repressive authoritarian regime. We have politicians and others in authority who deny the truth apparent to everyone else, and lie, who ignore HK’s obligations and their own their own responsibilities. Laws do need to be well-thought out, justified in their scope and well-written. It goes without saying that legislative revision should be appropriate and timely. I am not a lawyer, but I don't think this is asking too much. While the HK government, backed by the CCP, view justice narrowly in terms of the local legislation ("You must obey the law!"), the democratic movement views justice more broadly. They think of it in terms of its fairness, what is just, the application of the law, adherence to human rights and civil liberties principles and the work of the judiciary.


China and HK are both in derogation of their duties internationally. CCP and the HK government should recognise and adopt Article 1 of the United Nations International Covenant on Civil and Political Rights (ICCPR) that states: "All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."Currently this Article is missing in HK local legislation. Also missing in the HK Bill of Rights is Article 20 of the ICCPR which has two parts: "1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law." An informant tells me that at the time of the handover, these rights were purposefully left out of legislation drafted by the CCP to give it the free hand it wanted. The UN expressed concern about HK's implementation of the ICCPR as far back as 1995. Subsequent periodic UN reviews have expressed similar concerns, and many countries and organisations have submitted to their findings.


Another thing that seems to have been forgotten in HK, is the lesson of Article 20 of the Universal Declaration of Human Rights (UDHR). Described as a milestone document in the history of human rights, although the UDHR is not a legally binding agreement, it spells out the basic parameters of fundamental human rights that have guided countries worldwide since it was proclaimed in the UN General Assembly in 1948. In the case of Article 20, its first point states: "Everyone has the right to freedom of peaceful assembly and association." This seems very important in the context of the protests and rallies that have been taking place in HK (see our blog about the CCP and its dismantling of human rights). When you suffer an injustice at the hands of your government, or your employer, or some discriminatory organisation (for example), can you be expected to just take a deep breath and let the perpetrators get away with their injustice and abuse? Of course not!


Similarly the entire UN International Covenant on Economic, Social and Cultural Rights (ICESCR) was ignored when the HK Bill of Rights was drafted. It's important for HK people because it concerns such things as labour rights and the right to health, the right to education, and the right to an adequate standard of living (you can read our blogs on crises in health and education here and here). Currently HK has the most expensive housing and the largest gap between the rich and the poor.



It's okay for HKers to maintain their attachment to 'the rule of law', but such an attachment would become a problem anywhere if it was felt that the law itself was at fault. It's like those posters saying: "When injustice becomes law, resistance becomes duty." Many protesters feel justified in their acts of civil disobedience because of what they perceive as injustice in HK, because of their experience during the last six months and during the umbrella movement of 2014. They do not easily bend to CCP coercion. They are not afraid of the government, the HK Police Force (HKPF) or the CCP (see our blogs on coercion and lawyer's response to government action against protesters).


Some people would even go as far to say that the 'rule of law' in HK is a myth constructed historically as part of the HK identity. They point to how the number of political appointments, a lack of accountability for the HKPF and other authorities, and failing independence of the judiciary are all signs that HK is losing its autonomy, its freedom. They say that the law and ordinary people are being manipulated by those in control. Goodness! After any protest or rally against the government, the police will always give a lowball figure and downplay the number of people that took part. Their tactic makes the Police Force look incompetent, and it has become a long-running joke in HK. I won't even go into the work of the 'undercover' police agents.


Case in point: A team of protesters organised a rally to be held at Chater Garden in Central, on 19 January 2020. The action was about demanding electoral reforms for this year's September legislative elections, and urging the international community to impose sanctions on the HK government if protester demands continue being snubbed. Many thousands took part in the Police-approved rally that began at 3pm. Protesters converged on the relatively small park after another separate protest had finished, milling around the adjacent streets and pedestrian areas. Unfortunately the day descended into mayhem when police declared the rally over after skirmishes between protesters and officers in a street nearby. Organisers were given just minutes to clear the area!


To many present, this seemed like a repeat of an earlier policing incident in Causeway Bay on 1st January 2020. On that occasion Police also ended the approved peaceful protest at short notice, shutting down the MTR and leaving thousands of people with nowhere to go. The protest organisers (the Civil Human Rights Front) estimated more than 1million had gathered for the march to Central, while the HKPF put the number at just 60,000!


Ventus Lau, a spokesman for Hong Kong Civil Assembly Team, which organised the Chater Garden rally, was arrested immediately after speaking to reporters that evening on 19 January. Lau had claimed that at least 150,000 people attended the rally, while police put the turnout at 11,680 at its peak. His group said that Police had accused him of inciting the crowd and violating one of the rules in the force’s letter of no objection for the rally, that protesters could not overcrowd Chater Garden. Social media comments very quickly pointed out that the known capacity of Chater Garden has been put at 25,000, and that since the Police Force claim only 12,000 people attended the rally something doesn't seem right. If only 12,000 protesters attended the rally how could Chater Garden be 'overcrowded'?


Aerial images of the rally and nearby streets captured by drone are very revealing (see the report from Hong Kong Free Press): it seems rather silly for the HKPF to have issued their 'letter of no objection' as required under the Public Order Ordinance (POO) legislation, for the Chater Garden venue, with that laughable overcrowding rule. Other rallies, for example, have been held in much larger open space just a block or so away at Edinburgh Place. Zion Lam, another spokesman from the Civil Assembly Team, denied the police accusations and said there was still space in Chater Garden when the rally was shut down. The organisers had even asked those at the rally to leave, to make room for other protesters to get in, Lam added.


Since the Umbrella Movement began in HK in September 2014, hundreds of democracy activists and protestors have been prosecuted under the POO (see below). This is a law which has been repeatedly criticised by the United Nations Human Rights Committee for curtailing freedom of assembly. Protesters say the rules it puts in place governing demonstrations stifle their rights by giving police far too much discretionary power. The legislation, turned into a weapon, is still being used to suppress anti-government, and pro-democracy sentiment in the SAR, which is why clashes with police have increasingly seemed like warfare!


The POO ordinance, which regulates public meetings and processions, was first enacted in 1967 to crack down on the leftist riots against British colonial rule. It outlawed any gatherings of three or more people without police permission. The ordinance has undergone several changes over the years, but the core of the colonial legislation remains in place. In 1995 it became much more liberal following the enactment of the HK Bill of Rights Ordinance, adapted in part from the United Nations' International Covenant on Civil and Political Rights (ICCPR) (see our blog).


Before then, police permission had to be sought for any public gathering of more than 20 people. The 1995 change meant anyone wanting to hold a protest simply had to notify the HKPF. It was then up to officers to raise any objections, according to law scholar Anthony Law Man-wai's book The New Discussion of Human Rights Law in Hong Kong.


Then came the eve of the handover… and Beijing's fears of people taking to the streets. The Provisional Legislative Council (PLC), which was backed by Beijing and the CCP, restored the need to get approval for an assembly. Since 1997, public gatherings of more than 50 people or processions with more than 30 protesters have had to tell police seven days in advance and receive a "notice of no objection". If they don't get the notice they can appeal to a board chaired by a retired judge. Going ahead without approval leaves organisers and protesters open to various charges under the ordinance, including 'unlawful assembly' and 'unauthorised assembly'.


Interviewed by The South China Morning Post (SCMP) in 2012, Benny Tai Yiu-ting, then an associate professor with University of Hong Kong's department of law, said "At that time, the Chinese government was very worried about the social order during the transition period." He believes Beijing gave then-chief executive-elect Tung Chee-wah a political mission: to push for the tightening of the POO. "Beijing was worried that the amended POO in the colonial era was not enough to maintain social order. So they wanted to tighten it," Tai said. In his view the existing [POO] system was a reversal in terms of human rights. He said even though it was only "barely justifiable" to have to notify police about a protest because it was such a crowded city, protest organisers had proved willing to comply. The rights established in the 1984 Sino-British Joint Declaration were at stake here - the protection accorded to HKers' way of life.


As you can imagine, the HKPF has rejected many applications since 1997, and sometimes the reasons for doing so have seemed questionable. Critics also say police use another tactic to disrupt protests: by withholding approval until the last minute, the HKPF make things difficult for the organisers and crowd numbers can be minimised. The HKPF also sometimes stipulate conditions, such as start and finish times, a ban on musical instruments, that amplifiers must be covered, or that a particular route must be taken by marchers.


Organisers, such as the Civil Human Rights Front (CHRF) who are behind the annual July 1 march in HK, would be liable if they promoted their protests before the HKPF notice of no objection is issued.


The POO has been challenged, most notably by activist and lawmaker "Long Hair" Leung Kwok-hung, who lodged a judicial review in 2005. Leung and two others had been convicted of holding an unauthorised assembly in 2002 and put on a three-month good-behaviour bond. He went to the Court of Final Appeal three years later, challenging the Police Commissioner's power to restrict the right of peaceful assembly. The court dismissed the appeal and upheld the convictions. It ruled the notification system was constitutional and four judges suggested a minor amendment that would make the Police chief's power to restrain public assembly constitutional. Only Mr Justice Kemal Bokhary agreed with Leung that handing the Police Commissioner the power to restrict the right of peaceful assembly was unconstitutional.


Leung said at the time: "It is better for the Police Commissioner to seek a court injunction or order if he wants to prohibit a protest." He said the whole ordinance should be comprehensively reviewed.


At that time a Security Bureau spokesman would not say if a review was likely, saying only that the system had been operating effectively and smoothly.


The Legislative Council (LegCo) in 2000, stacked with a pro-Beijing majority, endorsed 36 to 21 a motion backing the provisions of the POO. However, in a report on HK published in 1999, United Nations Human Rights Committee expressed concern. "With regard to freedom of assembly, the committee is aware that there are very frequent public demonstrations in HKSAR … the committee is concerned that the POO could be applied to restrict unduly enjoyment of the rights guaranteed in article 21 of the International Covenant on Civil and Political Rights," it said.


Another part of the POO, section 17B on "disorder in public places", had frequently been used to charge protesters. That provision says anyone who acts in a disorderly manner "with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused" may be jailed for 12 months. However, being 'disorderly' is subjective and open to Police interpretation.


We have certainly seen in HKPF operations in the last year very selective application of the law, and on many occasions the public have considered and made their own evaluation of dubious Police interpretations of the circumstances (here's one incident, and here's another). We see repeatedly, weeks after an event, the HKPF keep defending, explaining and rationalising action that is clearly indefensible, such as delaying medical treatment for injured protesters and indiscriminate use of pepper spray and tear gas (see our blog on a Yau Ma Tei incident, and also our blog on Police' lies damage to the legal system). In the ongoing absence of an independent commission of inquiry into protests and police use of force, Amnesty International is one organisation that has begun the necessary work in HK and issued a damning report of the HKPF.


We also note that in many circumstances since June 2019 Police have arbitrarily arrested and detained people who are later released without charge, or with charges still pending. Can this Police behaviour alone be condoned under the statutes: HK's Bill of Rights, the ICCPR, the Joint Declaration and the UDHR?


A Beijing-friendly lawmaker Ip Kwok-him, chairman of Legco's security panel, said in 2012 that the rise in the number of charges made by the police was due to more protests, and that demonstrators were getting more provocative and likely to come into physical contact with Police. "The whole atmosphere of society has changed," he added. "There is much more negative sentiment nowadays." Asked if the POO should be reviewed, he agreed some sections were outdated. But he said it was a sensitive question and he had no further comment.


A Police spokesman said the aim of the POO was to strike a reasonable balance between the public's right to assemble and express their views, and the broader interests of the community at large. He said the overriding concerns were the preservation of public safety and public order and the protection of the rights and freedoms of others. "When any one of these pillars is at stake or when there is a breach of the peace, Police will discharge the duties prescribed in law with all lawful measures that are considered reasonable in the circumstances," he said.


[Oh, whatever!, I say. Please pass the salt.]


There was a time in HK when the HKPF used to have the word 'care' in its motto, but this was removed during the civil unrest in 2019. The police in HK these days do not serve the public at all - they lack accountability, and protesters consider officers of the force lap-dogs to the CE and the CCP.


A Security Bureau spokesman said a court judgment had pointed out that it was the government's duty to take reasonable and appropriate measures to enable lawful assemblies to take place peacefully and protect the safety and property of other citizens who might be affected.


Yet, marking something of a push back against protesters, the government put pressure on judges to increase the ‘deterrence effect’ of the POO legislation in 2017. According to a 2019 report by human rights group Hong Kong Watch, thereafter judges have interpreted offences in recent verdicts using the POO following a simple approach: maximise the probability of conviction and minimise leniency. This not only further raises the costs of protest and has detrimental effects on civil liberties and political freedoms, it also sets a dangerous precedent for the rule of law.


[What the....? This is warfare!]


This relates to one of the many issues raised by Hong Kong Watch in its full report that the Secretary of Justice, who is a political appointee, is in charge of prosecutions. It only increases the chances that court cases will arise and proceed in the context of political persecution. A year earlier, in another Hong Kong Watch report, the very same concern had been raised about the potential for political persecution. In 2018 they commented on the trials of pro-democracy Umbrella Movement leaders Edward Leung and Benny Tai: “The trials are already potentially politicised by the fact that the Secretary for Justice, a political appointee, is responsible for the prosecution of criminal offences. The former Secretary for Justice, Rimsky Yuen, sought disproportionate sentences for political activists which, if upheld in court, could violate the right to a fair trial,” Hong Kong Watch said.


Notably, the very slow progress made in prosecuting those charged during the Umbrella Movement was another factor in criticism made of the Secretary of Justice in February, 2017. Pro-Beijing legislators were pushing for faster legal proceedings, and suggested that political pressure was behind the slow progress in prosecuting Occupy Central leaders. Rimsky Yuen denied this and indicated that his department had already advised police on the criminal liability of the organisers. That update on proceedings was given two years after the trio behind the pro-democracy protests – the Reverend Chu Yiu-ming and academics Benny Tai Yiu-ting and Dr Chan Kin-man – and 45 other leading figures were “arrested by appointment”. Their arrests added to the 955 protesters held during the Umbrella Movement civil disobedience, but at that time only 216 had been dealt with in court.


The matters at issue in these prosecutions, is whether justice dispensed hastily is fair to the defendant, and similarly whether justice delayed interminably is fair to them or to society at large.


It's very difficult for people charged to get on with their life when a court case hangs over them, and having to wait a long time for an outcome means many plans have to be put on hold. Besides that stress, there's also the financial cost involved. Under attack, Secretary for Justice Rimsky Yuen Kwok-keung replied: “I can say this clearly and definitely to lawmakers, the President [of the Legislative Council] and Hong Kong society that there was absolutely no political pressure in handling Occupy Central or any other criminal cases.” He explained that such cases took time because many people had been arrested and there was a substantial volume of evidence, with numerous cases interconnected. Apart from the 216 who had gone to court, Yuen said police had referred 287 cases – including those who might have led the movement – for legal advice, which the justice department had responded to within four months by the end of 2018. These cases involved 335 investigation reports, 300 witness statements, 130 hours of video recordings and about 80 items of non-video exhibits.

In fact, given that the current crisis of governance in HK is about China's breach of the Joint Declaration, including the loss of freedoms and rights guaranteed and the failure to implement universal suffrage, ALL the current protester prosecutions amount to political persecution. It's the reason why an amnesty, one of the protesters' five demands, is a fair and reasonable expectation under the circumstances (see our blog on the amnesty issue).


Where is the justice?


We have a political crisis that needs a political solution, not one provided by more intense policing. Even the Police have called for a political solution! While we wait for that elusive political solution to materialise, the idea that there will be any justice in HK as court proceedings for those charged in the 2019-2020 protests grind on is looking more and more absurd. It does not bare thinking about how many investigation reports, witness statements, video recordings and non-video exhibits the HKPF will have to work through! And to what end??


For reasons of brevity, I won't go into the details of how Occupy Movement activists Joshua Wong, Nathan Law and Alex Chow were sent to prison after the Secretary for Justice Rimsky Yuen sought a harsher penalty by taking their case to the Appeal Court. But I do want to point out that the HK government made a tactical use of legal instruments to end the Occupy Movement in 2014. The government used court injunctions to clear away those occupying two protest sites at Mongkok and Admiralty. This in turn has had a lasting impact on those involved, and people's readiness in 2019 to either comply with the law or resist it.


The German government recognises that HK has a repressive authoritarian regime in control that violates human rights. On 22 May 2019, Ray Wong Toi-yeung and Alan Li publicly announced that they were granted refugee status by the government of Germany in May 2018. Undoubtedly one of the key reasons that the German government made the bold step of granting political asylum to two young HKers is because of the punitive way that the POO has been used to crackdown on, and imprison, protestors from across HK’s political opposition. Mr Wong and Mr Li were facing trial under this law, and therefore could not be guaranteed a fair trial.


In November 2019, pro-democracy demonstrators had targeted transport infrastructure in the SAR including the MTR and the city's airport. The published response of the HK and Macau Affairs Office (HKMAO) was that it “resolutely supports the HK government in adopting every necessary measure to end the unrest and restore order as soon as possible, arrest the criminals and severely punish their violent acts”. Going further, it called on the HK government, police and judiciary to “decisively adopt all necessary means to forcefully crack down on various acts of violence and terrorism”.


In an earlier media statement released in September 2019, the HKMAO took no prisoners when it gave its instructions: “The HK 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....Especially to those key violent criminals and their backstage masterminds, organisers and agitators, [we] must show no mercy and pursue till the end.”


The HKMAO seems oblivious to the idea of judicial independence! This is China's breach of the Joint Declaration. The HKMAO also seems not to realise that the HKPF must act within the law, and that officers are required to adhere to operational guidelines. In yet another public statement the HKMAO extended its abusive war of words, calling on HK authorities to launch a harsher crackdown to end the turmoil. “We resolutely support the HK SAR government, police force and judiciary to adopt more forceful, bolder and more effective actions to severely punish illegal and criminal acts, to stop unrest and restore order,” it said.


One of the ways that human rights in HK can be advanced is through the periodic reviews the SAR is obliged to undertake to check its compliance with the UN conventions it is a signatory to. A 2018 review highlighted concerns that the POO has been used to limit the rights of peaceful assembly under Article 21 of the ICCPR. It said that the HKPF are also deploying hard line tactics, limiting assembly rights. Protestors are increasingly facing arbitrary interferences with their right to privacy. It then identified the police use of video-recording devices as being problematic. Of great concern was the finding that HKPF has used the POO to prosecute protestors using charges which are inconsistent with the rule of law, as they lack sufficient clarity and certainty.


Importantly, the CCP has been put on notice about its failure to meet 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. China was urged 1) to take all necessary interim measures to halt the alleged violations, and 2) to prevent their re-occurrence. Beijing was informed that in the event that investigations support or suggest the allegations to be correct, they should ensure the accountability of any person(s) responsible for the alleged violations.


[Telling Beijing to keep a tab on what is going on in HK seems a bit silly, as mostly the HKPF are just 'following orders' from the CE or the CCP!]


As there was no response from China to the allegations, the UN Rapporteur's letter was released online on or about 28 August 2019.


In the 2019 protests alone, at least 6,000 people were arrested, of whom nearly 500 were charged with rioting. This was addressed after the pro-democracy movement won a majority in 17 out of 18 district councils in the November elections, all of which were previously under pro-establishment control.


Pro-democracy lawmakers in HK's Legislative Council (LegCo) then proposed a change in definitions of 'unlawful assembly' and a 'riot'. The proposed bill further sought to amend the maximum sentence for unlawful assembly from three years to six months, and reduce the possible sentence for rioting from 10 years to three. One of the lawmakers involved in the drafting of the bill, Eddie Chu said it would be an important test as to whether CE Carrie Lam would allow the draft bill to be discussed at the legislature, as the CE is able to block certain bills. “When the government is under international pressure, will it still use the evil law against us?” he asked.


HK’s Department of Justice approved the draft of the amendments which then required written approval from CE Carrie Lam before it could be presented in LegCo. Lam's response to the bill proposed was to assert that the SAR’s human rights and freedoms are protected by the Basic Law, and that a high degree of freedom is already in place. Speaking before going into her weekly Executive Council (cabinet) meeting she offered her usual whitewash: “In fact, I want to ask which aspect of Hong Kong residents’ freedom was eroded? We have press freedom, we have freedom to participate in rallies and marches. We have religious freedom. We have a high degree of freedom in many aspects.” Her government dumped the bill, leaving the colonial legislation in force. It's been clear for weeks now that the CE has her hands tied by the CCP and variously takes orders from the HKMAO or from Beijing directly.


Even after US President Donald Trump had signed into law the Hong Kong Human Rights and Democracy Act in early December 2019, CE Carrie Lam still bleated the same line, that the city’s freedom have not been eroded.


It's these mainland CCP authorities that have been so hell-bent on capturing HK ever since discussions on the future of the city began with the British (see our blog here). It's the CCP in particular who have weaponised legislation to turn it against their natural opponent - the people of HK. It's all part of how they have breached the Joint Declaration they signed with Britain in 1984.


The CCP now seems averse to calling a truce, to compromising in any shape or form lest it somehow have repercussions on the mainland. What the party seems to ignore is that their current repressive response to HK also has repercussions internationally - all the moreso given coronavirus events. The HK government is increasingly seen as a rogue regime, like that operating from Beijing.


Finding that their weapons of choice were rather blunt and ineffective against anti-government, anti-CCP, pro-democracy protesters, Carrie Lam and her supporters needed desperately to find something they could use to fight back - a final solution if you like! They needed something that would instil fear in the protesters and end violent protests in the city without her government having to make any further concessions to the protesters' five demands. Ramping up the police violence or using the People's Liberation Army (PLA) were most likely less viable options. How do you explain away the results of that kind of warfare to the onlooking world?? (see our blog on the PLA in HK)


Thus, the CE chose to go it alone on 4 October 2019, in declaring a face mask ban, utilising an out-dated emergency ordinance that had been gathering dust in the statutes for decades. Protesters had been using all manner of masks to hide their identity from Police using cameras to gather evidence for prosecutions, and to protect themselves from tear gas and pepper spray. The CE's intent was to make covering your face an illegal act for protesters, that would give Police reason for immediate arrest, and potentially lead to a charge incurring fines of up to HK$25,000. Speaking about the intended deterrent effect of the mask ban, Lam said : "Although the ordinance carries the title emergency, Hong Kong is not in a state of emergency."


[The CE forever denies the facts staring her in the face!]


The implications of invoking the Emergency Regulations Ordinance (ERO). in HK were considered by many to be very serious. Under the ERO that was first tabled in 1922, the laws grant the city’s CE the power to “make any regulations whatsoever” on “occasions of emergency or public danger”. The legislation allows “censorship” of publications including the media, arrest, deportation, detention, seizure of property, and authorizes the entry and search of premises. While Lam’s move involved only the mask ban, she did not rule out taking further action if the situation continued. Lam said people should not see this as HK being in a state of emergency, but a means to end the violence, aid police enforcement and restore order.


The voices of condemnation in HK and abroad were loud and immediate in their response:


Human Rights Now Condemns the Use of the Emergency Law by the Hong Kong Government and Calls for Stringent Compliance with Hong Kong’s Bill of Rights and International Human Rights Law.


Hong Kong Watch condemns ban on face masks and use of emergency powers.


On the Saturday afternoon immediately after the mask ban came into effect, hundreds of protesters began marching through downtown HK chanting “Fight for freedom! Stand with Hong Kong!” and “I have the right to wear a mask!” Marchers occupied major streets and almost all wore facial coverings in defiance of the ban, which applies to all public gatherings and renders violators liable to a year in jail.


Rather than quell the unrest and end the protests, Lam's mask ban had just poured fuel onto the fire of discontent!


Two dozen opposition lawmakers challenged the legality of the face mask ban by arguing in a High Court hearing (September) that both that ban and the ERO used to enact it were in contravention of the Basic Law (a kind of mini-constitution prepared by China at the time of the handover). Finally on 18 November, 2019 High Court Judges in HK ruled that the city's face mask ban enacted by the CE was unconstitutional.


[Was that the end of it? Hell no!]


Not to be beaten the CCP came out fighting, plunging HK into what amounted to a constitutional crisis.


Beijing then insisted that it alone held the authority to rule on constitutional matters in HK, as it condemned the decision by the city's high court to overturn a ban on face masks worn by pro-democracy protesters. The statement made from Beijing only served to confirm the obvious: that the CCP is chipping away at the autonomy of the financial hub. For many HKers this crisis shows that the "one country, two systems" model espoused by Beijing is not functioning as it ought to (see our blog on this).


There ensued a flurry of statements from various people on both sides of the divide who all thought they were the final authority on what is legal or what is right for HK. I have to say that any argument about what HK people actually want for their city was lost in the smoke and the gunfire! We should all remember that.


The Legislative Affairs Commission of China’s top legislative body, the National People’s Congress Standing Committee (NPCSC), had criticised the court’s decision on the government’s mask ban against protesters, which it ruled unconstitutional. The Bar Association [HK], criticising the comments for being “legally incorrect”, and noted that there had been no previous suggestion that the courts could not strike down unconstitutional law. “Any suggestion that the courts … cannot conduct a constitutional review circumscribes the exercise of judicial power by the courts which they have always enjoyed and is contrary to the Basic Law. It also undermines the high degree of autonomy granted to the HKSAR,” they said.


Martin Lee Chu-ming, a well-respected pro-democracy lawyer and co-founder of the Democratic Party in HK, who was involved in the drafting of the Basic Law, suggested that any move to claw back the judicial power of HK's courts would be the end of HK's legal system. A threatened interpretation of the Basic Law by Beijing would also have been seen as yet another nail in the coffin for HK's autonomy. The legal eagles seemed to be saying that the entire house of cards that HK was built upon was about ready to collapse!


For Carrie Lam, the way out of the constitutional crisis over the crushing of the face mask ban and the ERO was to appeal the decision - after all it had basically been a slap in the face to her, a rap over the knuckles for the CCP, and a setback for her governance. It made no difference to her that even a number of pro-Beijing lawmakers in LegCo believed she ought not to have invoked the ERO unilaterally. On 10 December 2019 the Court of Appeal in HK ruled that the mask ban was to remain unconstitutional, and that there would be a full appeal hearing arranged for some time in January 2020.


Enter Coronavirus on the battle stage!


All has conveniently gone quiet regarding that legal tussle, and we are now into March 2020.


Beijing's more recent response to the 'crisis' in HK has been to carry out a reshuffle of its attack commanders. On 4 January 2020, the State Council dismissed Wang Zhimin from the role of Director of the Hong Kong Liaison Office and elected Luo Huining as his successor. The decision was widely linked with the poor performance of the pro-government candidates at the District Council Elections in November 2019, and Wang's perceived poor judgment of how the protests evolved. Zhang Xiaoming, who held the position of director of the Hong Kong and Macau Affairs Office, was demoted and replaced by Xia Baolong, a hardline confidente of Xi Jinping, in February 2020.


Like the CCP, the USA is capable of turning legislation into a weapon. It has done so with the passing of the HK Human Rights and Democracy Act (2019)(HKHRDA), which puts the SAR's current favoured trading status in jeopardy should HK's human rights and democracy be eroded. HK is important to the U.S. because, according to the US State Department, 85,000 U.S. citizens lived in HK in 2018 and more than 1,300 U.S. companies operate there, including nearly every major U.S. financial firm. It is expected that the U.S. government is going to issue its first annual certification on the HKHRDA in March or April 2020 (watch this space!).


In contrast to this, the key weapon the British have to put pressure on the CCP over its squeeze on HK, lies in the Joint Declaration, an internationally recognised legal treaty signed by China and UK, and lodged with the UN.


People worldwide, and HKers themselves, have expressed their desire to see that HK keeps its status internationally and gain its agreed universal suffrage in CE, LegCo and District Council elections. A political solution for this political crisis needs to be palatable to all stakeholders involved.


The coronavirus pandemic beginning in Wuhan, China in January 2020 has not ended the political crisis in HK - it has merely added something else for HKers to be unhappy about!


[End the war!]


If the CCP and Lam's government in the SAR would concede to the will of the majority of HK people there is every chance that things can be turned around. HK is in a sorry state because of their failures in proper and just governance (see our blog about lost trust). They must both understand finally what the protest ‘crisis’ in the SAR is really about. It is about opposition: partly to the ideology of the central government, but also to its encroachment on HK's civil liberties.


Wethepeopleofhk have for some time put forward the suggestion that a referendum be held to engage the people of the SAR. HK can learn from the democratic work done in other jurisdictions, and find its own pathway to legislative reform in the city. If agreed, allowing HK to have a referendum which is then acted on would have the effect of annulling China's breach of the Joint Declaration, meaning it would continue as a Special Administrative Region of China, even beyond 2047 if China agreed. Needless to say the CCP needs to review how it applies the 'one country, two systems' formula in HK. There is so much work to do!


The elephant in the room is 2047, fifty years after the handover when the Joint Declaration came into effect.


The result of the 2019 HK District Council Election shows clearly that pan-democratic councillors are supported by the majority of HK people and the protesters. In 2020 there is greater concern than ever over whether the HKPF and the independent judiciary are respecting human rights, are exercising the discretion conferred to them by the law. Even the discretionary powers of the Department of Justice are a cause for concern. The debate over the POO in HK should be renewed in earnest. Greater efforts must be made to protect citizens' rights to peaceful protest. We must learn our lessons from global events and history. When members of the public raise issues with their government, it is not right to ignore them, and repression of those who are critical, opposing, vocal or outspoken is similarly unwise and unacceptable.


People should not be scared of their government; it is the duty of governments to serve their people.


Jeremiah B.


Footnote:

Hong Kong Police should uphold human rights; protesters are human rights defenders NOT rioters


30 April 2020, SCMP columnist, Michael Chugani reflects on interpretations of Article 22 of the Basic Law, and asks the question : "If Carrie Lam is governing Hong Kong and Luo Huining is supervising, who's really in charge?"






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