By Jason Y. Ng, Progressive Lawyers Group
You don’t have to be a comic book fanboy to know who Thanos is.
The supervillain in the Marvel filmdom is famous for his master plan to collect all six “Infinity Stones”—ultimate sources of power that control essential aspects of existence. Despite the Avengers’ effort to foil his conquest, Thanos becomes incrementally more powerful and unstoppable with each stone he collects. Once he has all six gems attached to his gauntlet, the purple Titan can eliminate half of all life in the universe simply by snapping his fingers. He calls it his destiny.
In the past few weeks, Chief Executive Carrie Lam has been behaving a lot like Thanos. Our own super villain is hellbent on passing an amendment bill by the end of June to forge a new extradition arrangement between Hong Kong and mainland China. She justifies her game plan under the pretext of plugging a loophole in cross-border law enforcement, all to save Hong Kong from becoming a “haven for international fugitives.”
No reasonable person believes any of Lam’s doublespeak. Her justification for the amendment bill—and the big rush to ram it through the legislature without much consultation or deliberation—is as preposterous as Thanos’ claim to “restore balance in the universe” by wiping out half of the population.
The Space Stone
If I may continue my Marvel metaphor, the extradition proposal itself is not unlike the Space Stone that opens up wormholes to teleport its users anywhere in the universe. Once passed, the amendment bill will allow anyone in Hong Kong—locals, expats and even visitors passing through the city—to be spirited away to the mainland to stand trial for charges levelled against them.
Some of these charges may be real, like bribery, in a place where doing business often requires generous gifts to “grease the wheels.” Other charges may be fabricated, such as fraud allegations invented by a disgruntled joint venture partner or any of the 37 enumerated crimes if you are a thorn in Beijing’s side. Think of the “hit and run” charges to which one of the Causeway Bay Booksellers was forced to confess after a series of high profile abductions in 2015.
If you think the West Kowloon co-location arrangement is bad because it permits mainland authorities to enforce Chinese laws on Hong Kong soil, the extradition arrangement is infinitely worse. Like the Space Stone, it opens up a portal connecting Hong Kong to a judicial system where a fair trial can be as far-fetched as a comic book storyline.
But that’s not all. The proposal will also make possible for Hong Kong law enforcement to perform search and seizure under existing criminal procedures. Once mainland authorities present plausible evidence of an alleged crime, local police may obtain a court warrant to enter the suspect’s premises and seize his or her computer harddrive and other records. Anything from personal data to trade secrets may then be handed over to the Chinese government as part of the criminal investigation.
All that should give everyone—and I mean everyone—serious pause. That includes the small business owner who runs a garment factory in Dongguan, the journalist who reports on China from Hong Kong, and the Google or Apple of the world that has set up shop in the city thinking it a safe place from technology espionage.
Then there is the unsuspecting foreign traveller making a transfer at the Hong Kong International Airport who may be intercepted on fictitious charges, either in retaliation for the Meng Wenzhou arrest or as a pawn in the escalating Sino-American trade war.
The first two stones
The extradition saga alone doesn’t make our chief executive a Thanos-incarnate. To fully appreciate the comic book comparison, we need to look at our political landscape in broader terms.
The Basic Law is a product of compromise between two world powers over the governance of a former crown colony. Our mini-constitution is fraught with concessions that favor the establishment, including, most damagingly, the creation of the functional constituencies in the Legislative Council (Legco) under Annex II, as well as Article 158, which gives the Standing Committee of the Chinese National People’s Congress (NPCSC) ultimate power to interpret the Basic Law.
In less legalistic words, Annex II ensures that a body stacked with Beijing-handpicked lawmakers will always be there to rubber stamp government policies and stonewall the opposition in the legislative process. The functional constituencies are the reason why taxpayers are writing billion-dollar cheques to fund wasteful infrastructure projects, and why the pan-democrats are routinely denied their demands to investigate senior government officials for graft.
Call it the Power Stone, Article 158 creates a back door for the government to seek a “reinterpretation” from the all-powerful NPCSC, either to overrule unwanted decisions by Hong Kong courts or as a preemptive move to bind their rulings. The secret weapon was deployed two years ago to disqualify half a dozen democratically elected lawmakers that Beijing disliked, and again last year to ratify the controversial West Kowloon co-location arrangement.
Putting that in Avengers terms, those two constitutional designs are the first Infinity Stones handed to the Hong Kong government and increasingly wielded by the chief executives to entrench control and silence dissent. Like the colourful gems, the weapons are powerful in their own right, but they can make the ruling elite invincible if used together.
Lam’s quest for domination
The Umbrella Movement in 2014 has polarized society into yellow versus blue, heroes vs. villains. It has also accelerated Beijing’s political agenda for Hong Kong, as the communist leadership ostensibly battles a non-existent pro-independence movement but really tries to tighten its grip on the increasingly vocal territory.
These developments have in turn given the chief executive a carte blanche is do whatever it takes to restore public order, even at the expense of civil liberties and political pluralism. Since Carrie Lam took office in 2017, she and her minions have managed to make further incursions into our political freedoms by relying on the presumably independent returning officer to bar a subset of opposition candidates from running for office.
During the byelections to fill vacated seats left behind by ousted lawmakers, political hopefuls who have advocated various forms of self-determination were summarily denied permission to run, even after they had signed a pledge of allegiance to the Basic Law, which itself was an invention designed to screen candidates.
If the creative use of the returning officer as a gatekeeper represents the third Infinity Stone to wipe out nonconformists, then the fourth one came when the Legco voted to amend its rules of procedure to effectively put an end to filibusters. It wasn’t enough for the government that the legislature is already tilted toward the establishment under the weight of the functional seats, it—with the help of the pro-Beijing camp—had to decimate our last line of defence against bad bills by removing the opposition’s ability to stall a floor debate.
The Legco rule change is the perfect example to illustrate the cumulative force of the Infinitive Stones. It was the Power Stone—the NPCSC reinterpretation—that allowed the government to unseat pro-democratic lawmakers and redraw the balance of power in its favour. That has in turn given the pro-establishment camp enough votes to pass the rule change to curtail filibusters and eliminate the only remaining check and balance in the system. In other words, the use of one stone has enabled the retrieval of the next.
Four down, two more to go
With four stones in her gauntlet, Carrie Lam is well on her way to secure the remaining two. And if she gets the Space Stone by passing the extradition bill, the aggregated power of her arsenal will leave little room, if any, to stop her from getting the final stone: an anti-subversion law under Article 23 of the Basic Law.
Already, there is chatter that the government may implement Article 23 not by proper legislation but instead by seeking another NPCSC reinterpretation. If the Power Stone is used once again to do just that, then it will, among other dire consequences, satisfy the “dual criminality” requirement under the proposed extradition arrangement and potentially allow Beijing critics in Hong Kong to be surrendered to the mainland on national security grounds.
That the court will be there to block politically motivated extradition requests is cold comfort to anyone, not only because the safeguard is untested but also because the chilling effect on dissent will have already taken hold by then.
Once Lam’s master plan is done and dusted, she can snap her fingers and silence the half of the population that stands in her way. The multiplying damage inflicted on civil society would be so total that the freewheeling city as we know it would be history. Unluckily for us, we don’t have a time machine to turn back the clock and undo the carnage.
Hong Kong’s end game is upon us. If that isn’t enough to get you to come out to every street rally between now and the end of June to take a stand against the extradition bill – whether out of righteous indignation or for the sake of the personal liberty of yourself and the people you care about – then nothing else will.
Article originally appeared in HKFP on 9 June 2019.