對政府建議一地兩檢方案的法律問題 (FAQs on Hong Kong Government’s Co-location Proposal)

法政匯思對政府建議廣深港高速鐵路香港段 (『高鐵香港段』) 實施一地兩檢的常見問題解答 (精華版)

The Progressive Lawyers Group’s Selected FAQs on the Government’s co-location proposals in the Hong Kong section of the Express Rail Link

常見問題解答中文完整版(共25條)﹕
https://goo.gl/Ln6uay

Full FAQs in English (25 in total):
https://goo.gl/5N75PG

 

Beijing’s ‘lawfare’ against dissent in Hong Kong unites fractious opposition

In one of the largest protests since 2014’s pro-democracy Umbrella Movement, 22,000 protesters took to the streets of Hong Kong on Sunday.

The immediate catalyst for their protest was the jailing last week of three Umbrella Movement protest leaders.

Joshua Wong, the international face of Hong Kong’s democracy movement, together with his fellow student leaders Alex Chow and Nathan Law were sentenced to six to eight months in jail for their role in leading an “unlawful assembly” in the early days of the protests in September 2014.

Never mind that the trio had already been sentenced by a lower court to community service for their crimes and already served their punishments in full.

The Hong Kong government — and, no doubt, their Beijing masters — clearly wanted to send a message to the people of Hong Kong that dissent will not be tolerated, and so appealed their sentence, calling for tougher punishment.

As a convenient by-product of these jail sentences, the trio will now be banned from running for public office for five years, and likely face personal bankruptcy as well.

‘Umbrella three’?

The protesters on Sunday gathered in support of the “Umbrella Three”, whom many are calling Hong Kong’s first political prisoners.

With large-scale incarcerations following protests and rioting under British rule in the 1960s it would be blind to history to argue that they are Hong Kong’s first political prisoners.

But, given that the Umbrella Three have been jailed for conducting a political protest, and the decision to prosecute and appeal their sentences was made by a political appointee — Secretary for Justice Rimsky Yuen — who, it is reported, overruled Department of Justice career civil servants and senior public prosecutors in making his decision, to try to argue they are not political prisoners is little more than quibbling.

On Monday, Hong Kong Chief Executive Carrie Lam did her best nevertheless, stating that the cases “are not political persecutions or persecutions on the basis of expression of views” and that there was “absolutely no political interference, both in the prosecution, in the review of sentence and in the judgments and rulings”. But her words rang hollow.

Unseemly appeal?

It is a fundamental tenet of common law justice systems that prosecution decisions are made with reference to the public interest.

It is not clear what public interest was served by the appeal of these sentences.

Prosecutors appealing sentences already lawfully determined by a court because they are “not tough enough” is unseemly in all but the most egregious of cases, invariably involving violent crime, but in a purely political case such as this it offends all notions of justice and fairness.

The laws under which the Umbrella Three have been jailed are hangovers of the colonial era, laws that, even at the time of their enactment fifty years ago in the wake of the Cultural Revolution riots, were controversial and considered a backward piece of colonialism which unduly restricted liberty.

For these laws to be used to both regulate — and prosecute — political expression in the 21st century is shockingly retrograde.

‘Lawfare’

The jailing of the trio is just the latest in a series of ongoing acts of “lawfare” by Beijing against dissent in Hong Kong, including the recent legal action to disqualify six duly elected pro-democracy legislators.

It continues the very disturbing trend of the politicization of Hong Kong’s court system, with the government pushing the courts to serve Beijing’s political agenda.

This is bad news for the future of the rule of law in Hong Kong, and will ultimately have implications not just for political dissenters but for business confidence in a city which seeks to distinguish itself from the rest of China almost solely on the basis of its independent, transparent and predictable justice system. All three of those attributes are now in doubt.

With their harsh sentences of the Umbrella Three, the government has tried to make the cost of dissent intolerably high. Jail, bankruptcy, ruined career prospects: the government wants Hong Kong’s politically active youth in particular to think twice about what price they are willing to pay to stand up for their beliefs.

However, Sunday’s protests appeared to renew the solidarity and unity of purpose across Hong Kong’s often-fractured pro-democracy groups.

They showed unambiguously that the spirit of protest is built into the very fabric of Hong Kong identity and will not be so easily extinguished.

Article originally appeared in CNN on 23 August 2017

Why Hong Kong’s justice minister Rimsky Yuen is so sanguine about joint checkpoint for express rail link

By Jason Y. Ng

Jason Y. Ng says the logic behind Rimsky Yuen’s support for immigration co-location at West Kowloon is unsound, but the justice minister’s confidence stems from knowing that Beijing always has the last word

Seven years after Donald Tsang Yam-kuen’s administration rammed a funding bill through the legislature to bankroll the cross-border rail link, the Hong Kong government this week unveiled a long-awaited proposal to resolve the border control conundrum.

At issue is whether carving out certain areas at the West Kowloon terminal station where mainland officers are given broad criminal and civil jurisdiction will run afoul of the Basic Law, Hong Kong’s mini-constitution.

It is an 84-billion-dollar question that can make or break the controversial infrastructure project. If the government’s proposal falls through, every time-saving and convenience advantage to justify the rail link’s dizzying price tag is put at risk. But if the plan prevails, it may create a foreign concession of sorts in Hong Kong and open a Pandora’s box of extraterritorial law enforcement.

The central question is a straightforward one: is the joint checkpoint proposal constitutional?

The answer can be found in Chapter II of the Basic Law, which governs the relationship between mainland China and Hong Kong. Articles 18 and 22 prohibit national laws from being applied in Hong Kong (with the exception of matters relating to defence and foreign affairs) and forbid Chinese authorities from interfering in the special administrative region’s affairs.

In addition, Article 19 grants Hong Kong courts exclusive jurisdiction over cases that occur anywhere within the territory. That means any attempt to enforce Chinese law on Hong Kong soil – no matter the location or size of the area – is on the face of it in breach of at least three provisions of the Basic Law.

But the government begs to differ. Secretary for Justice Rimsky Yuen Kwok-keung has so far put forward two counter-arguments. First, he argues that the designated areas, once leased to the central government, will no longer be part of Hong Kong’s territory and therefore outside the jurisdiction of the Basic Law.

Yuen’s argument is plainly circular: it is constitutional to carve out certain areas because those areas have been carved out of the constitution. If that were true, then by analogy there would be nothing to stop the government from excluding, say, left-handed people from the protection of the Basic Law, on the basis that those people will have no such protection once they are excluded.

Second, Yuen invokes Article 20 of the Basic Law, which allows the Hong Kong government to enjoy new powers conferred to it by the National People’s Congress Standing Committee.

Bending that provision to serve his purpose, Yuen argues that the SAR government can seek a “new power” from the Standing Committee, so that it can in turn authorise the mainland authorities to enforce national laws in the designated areas.

In essence, Yuen is asking Beijing to give Hong Kong the power to give Beijing the power to do what Beijing doesn’t currently have the power to do in Hong Kong. Mr Secretary should get an “A” for creativity and an “F” for logic.

Such illogic aside, many are asking how constitutional lawyers have got comfortable with seemingly similar arrangements enjoyed by foreign consulates and “mainland-controlled” areas like the central government’s liaison office in Sai Ying Pun and the People’s Liberation Army garrison in Tamar.

Mr Secretary should get an ‘A’ for creativity and an ‘F’ for logic

Foreign consulates are specifically dealt with in Annex III to the Basic Law, which imports Chinese regulations governing diplomatic privileges in compliance with the Vienna Convention on Consular Relations. Even so, consuls and their staff only enjoy diplomatic rights and not law enforcement powers. What’s more, Hong Kong courts still have full jurisdiction over any illegal acts committed on those premises. The same is true for the liaison office and the PLA garrison.

Then how do other countries address similar issues in their extraterritorial checkpoints, such as the passport control at London’s Eurostar terminal and the US immigration controls at Canadian airports? The answer is simple: they don’t have to. Sovereign nations are free to enter into any border control arrangements with each other as they see fit, because their relationship is not bound by the Basic Law. But ours is.

If the joint checkpoint proposal violates the Basic Law, the next question becomes: are there less invasive alternatives?

Commentators and advocacy groups have tabled a number of options. One of them is to limit the mainland officers’ powers to the performance of immigration and customs controls only, instead of the full criminal and civil jurisdiction currently being proposed.

While this scaled-back arrangement still won’t pass constitutional muster, it will at least allay fears that mainland authorities may arrest and detain passengers at will while on Hong Kong soil – fears that are understandable, considering that the missing booksellers incident is still fresh on everyone’s mind.

The most legally viable alternative so far is one that involves a combination of ground and on-board clearance procedures. Based on the current rail network, high-speed trains leaving West Kowloon must make a first stop in either Shenzhen or Guangzhou. Under the “combined approach”, Hong Kong passengers whose final destination is one of those two cities will exit the train and go through a physical checkpoint upon arrival. Those who continue their journey to other destinations will stay in their seats and await immigration officers to check their documents and luggage on board.

On-board clearance is typical in Europe and does not cause any travel delay to passengers. However, this approach will incur additional expenses on the mainland side by requiring physical checkpoints to be set up in Shenzhen and Guangzhou.

Therein lies the conflict of interest: mainland authorities see no reason why they should bear any of the cost of linking Hong Kong to their massive high-speed rail system. Hong Kong citizens are the ones who need to figure things out for themselves.

It is again the citizens of Hong Kong who will pay the price – in dollars and in dignity

In the coming months, legal experts and government officials will continue to argue over the legality of the joint checkpoint proposal. Already, at least two judicial reviews have been filed to challenge it in local courts. Whereas complicated legal issues may be of little interest to the majority of citizens who prize convenience and connectivity above constitutional principles, they matter even less to the SAR government.

For the bureaucrats know, if the stalemate should go on any longer, the NPC Standing Committee will have no qualms about issuing yet another interpretation of the Basic Law.

That explains the justice secretary’s confidence in the rail plan. He, too, knows that no matter what unsound arguments he puts forth, Beijing will always have the last word. But each time the Standing Committee uses its trump card, it chips away at the authority of the Basic Law and makes the “one country, two systems” promise mean a little less. And it is again the citizens of Hong Kong who will pay the price – in dollars and in dignity.

Jason Y. Ng is an author of several books on Hong Kong and a member of the Progressive Lawyers Group

This article originally appeared in the South China Morning Post 

 

China’s Growing Intolerance for Dissent will Come at a High Price

By Jason Y. Ng

On Thursday evening, Chinese dissident and political prisoner Liu Xiaobo died from liver cancer in a Shenyang Hospital. Liu was, as the Western press sharply pointed out, the first Nobel Peace Prize laureate to die in custody since Carl von Ossietzky did in Nazi Germany in 1938. Supporters the world over mourned the death of a man who lived and died a hero. The only crime he ever committed was penning a proposal that maps out a bloodless path for his country to democratise.

Then on Friday afternoon, Beijing’s long arm stretched across the border and reached into Hong Kong’s courtroom. Bound by the National People’s Congress Standing Committee’s decision on oath-taking etiquettes, the Hong Kong High Court ruled to unseat four democratically-elected opposition lawmakers, including Nathan Law, the youngest person ever to be elected to the legislature. The only infraction the four ever committed was straying from their oaths during the swearing-in ceremony to voice their desire for their city to democratise.

The two news stories, less than 24 hours apart, share a chilling symmetry. They underscore the Chinese government’s growing intolerance for dissent on both the mainland and the territories it controls.

But Beijing’s tightening grip comes at a cost. In Hong Kong, Liu’s death has rekindled an anti-mainland sentiment that has been smouldering for years. To the seven million citizens who watched Liu’s slow death in equal parts horror and grief, any remaining pretence that modern China is a benevolent paternal state that has moved beyond a brutal response to political debate has been shattered once and for all. And all current and future attempts by Beijing to win over Hong Kong people, especially the younger generations, are doomed to fail. The indelible images of a skin-and-bone dissident on his deathbed or of that famous empty chair in the Oslo City Hall have been seared into their collective mind. China has lost Hong Kong forever.

Similarly, the removal of four pro-democracy lawmakers is not without consequence for Beijing. By reinterpreting the oath-taking provisions in the Basic Law, the Chinese government has sidestepped the judiciary in Hong Kong and dealt another blow to the city’s rule of law. Each time the NPCSC rewrites the rules and overrides local judges, Hong Kong’s independent judiciary—the bedrock of its economic success—means a bit less. With each heavy-handed attempt to squash the opposition, “one country, two systems”—the framework of happy coexistence for Hong Kong that President Xi Jinping is fond of parading in front of world leaders and hopes that Taiwan will one day embrace—looks a little more like a broken promise.

What’s more, the loss of four pro-democracy seats has removed the checks and balances in Hong Kong’s bicameral legislature – the Legislative Council – which comprises the democratically-elected Geographical Constituencies and the undemocratic Functional Constituencies stacked with pro-business special interest lobbyists. The unseating of the foursome has cost the opposition its majority in the Geographical Constituencies, which means that any unwanted bill proposed by a pro-Beijing lawmaker will sail pass both houses.

One of the first things that the pro-Beijing camp plans on doing is amend the voting procedures in the legislature to put an end to filibusters. Without the ability to block that amendment, the opposition will see its only effective weapon against the government taken away. That means there will be nothing to stop the Hong Kong government from pushing through Beijing’s political agenda for Hong Kong, from the passing of a highly unpopular anti-subversion law to the approval of multi-billion dollar infrastructure projects for great economic integration with the mainland.

All that will work in Beijing’s favour in the short run, but the headache won’t be far behind. A legislature that acts with complete impunity will further embitter the population and destabilize Hong Kong. By pushing the opposition out of the legislature and back onto the streets, Beijing may have inadvertently set in motion a new era of resistance.

The same ingredients that ignited the Occupy Movement three years ago will once again bubble to the surface, pushing the city toward a political movement of a larger scale and with more far-reaching repercussions. None of that is in President Xi’s interest, considering that the senior Chinese leadership is already mired in factional infighting and an increasingly ungovernable Hong Kong will hurt the strongman image that Xi has so carefully crafted for himself.

What separates a skilled autocrat from the rest of the mad dictators is his ability to judge the difference between going too far and just far enough. Control may be the Chinese Communist Party’s best substitute for legitimacy and a necessary condition for self-perpetuation, but how much control is too much continues to confound –and may one day trip up – Xi’s leadership. What happened to Liu Xiaobo and the four ousted lawmakers in Hong Kong suggests that Beijing is now dangerously close to overstepping that line. The price for misjudging the situation will be high, and while most of it will be borne by mainland dissidents and the citizens of Hong Kong, it may pack enough punch to upset the ever-delicate balance in the house of cards.

Jason Y Ng is the author of a book on Hong Kong’s occupy movement and a member of the Progressive Lawyers Group.

Article originally appeared in The Guardian on 17 July 2017

【DQ風波.博評】原訴法院「四議員宣誓案」:釋法與法治十問十答

今個星期,按《01博評》邀請,再暫停寫親子,與大家說說法律。

昨日,高等法院就羅冠聰、梁國雄、劉小麗、姚松炎的立法會就職宣誓案頒佈判辭。區慶祥大法官的判辭長達112頁,覆蓋甚廣。各傳媒已就判辭內容廣泛引述,不少法律界人士亦已就判辭的實質法律、法律程序或政治影響發表意見,我亦無意在此重複他人已做的具體法律分析。

不過,我留意到在判辭頒佈後,有些人說它是彰顯法治、有些人說是法治已死。我想趁這個機會以問答形式再重溫一下人大常委釋法機制與法治的關係,然後再簡短地看看今次「四議員宣誓案」的法治討論。

  問題(一):人大常委的釋法權是什麼一回事?

《基本法》第158條表明:「本法[註:即《基本法》]的解釋權屬於全國人民代表大會常務委員會。 」香港法院亦在多年來的案例中確認,人大常委的釋法權是無限的,而且釋法內容亦對香港法院有約束力。

  問題(二):人大常委釋法前,要先聽什麼意見?

根據《基本法》第158條:「全國人民代表大會常務委員會在對本法進行解釋前,徵詢其所屬的香港特別行政區基本法委員會的意見。」這個基本法委員會是人大常委下的工作小組,是人大常委委任的,有六名中方與六名港方代表。這個委員會並不是獨立於人大常委,過往被徵詢亦(至少在公開紀錄上)沒有一個委員逆人大常委的意願。

長話短說,這個機制是「自己人徵詢自己人」的一個橡皮圖章。

  問題(三):以香港法律來說,人大常委可以解釋或補充《基本法》以外的法律嗎?

理論上是不能的,它的解釋權只限於解釋《基本法》。它沒有解釋香港本地法律的權力。

還有,解釋權雖然可以就《基本法》條文一些不清楚的字眼釐定,但都不能把字眼扭曲到與字眼背道而馳、亦不能嘗試添加《基本法》內顯然不存在的法律要求。簡單來說,這即是根據《基本法》,人大常委沒有在《基本法》或香港本地法律上以「解釋」來變相更改字眼,或添加額外法律要求。

要更改《基本法》字眼或添加《基本法》條款,就要根據《基本法》的修改機制。如果利用釋法權去「走後門」做修改工作,就是無視人大整體頒布的《基本法》的權威。

要更改香港本地法律字眼或在本地法律條文上添加,就要經過《基本法》以一國兩制方針訂下香港本地立法程序去做,不能以人大常委釋法「走後門」。

  問題(四):如果人大常委真的是超越了上述問題(三)下所提的規限又如何?

其實是無可奈何的。根據《基本法》第158條,香港法院只是被人大常委授權在審理案件時解釋在香港自治範圍內的《基本法》條文。人大常委的《基本法》解釋權是在香港本地體制以外的,所以其權限有可能是香港法院沒有權去解釋的。就算香港法院有此解釋權,人大常委亦隨時隨地可以就自己的解釋權作解釋,說到自己可以做上述問題(三)下提到的東西。

所以,無論是法理上或實際上,無論人大常委的《基本法》解釋是有那麽越權也好,香港法院都很難不牢牢地跟隨的。

  問題(五):但這個情況與其他地區的最高上訴法院一樣,不是嗎?它們對法律的解釋無論是那麼錯也好,都是無可奈何吧?

情況不太一樣吧。如果其他地區最高上訴法院對憲法解釋令人覺得很離譜,人民或其選出來的代表有機制可以修改憲法。如果如果其他地區最高上訴法院對一般法律解釋令人覺得很離譜,政府與議會可以立法去處理問題。

在香港,《基本法》第159條規定,要修改《基本法》就需要港區人大代表的三分二成員、全體立法會的三分二成員與行政長官同意後,再交給全國人大審議與通過。在現今制度下,是誰操控港區人大代表?是誰操控立法會大多數票?是誰操控行政長官?是誰操控全國人大(或負責《基本法》釋法的人大常委)?你懂的。

借用電影《少林足球》的一句對白,正所謂「球證、旁證、足協、足總、足委,全部都係[他們]的人,點同[他們]打呀?」想處理人大常委《基本法》釋法越權問題?休想!

  問題(六):在現實上,人大常委有沒有試過在解釋《基本法》上述越權情況?

有。要把每一個越權情況列出來及解釋這些情況怎樣構成了越權會十分冗長,所以我只會簡單地列出其中兩個較明顯的例子:

《基本法》第46條清楚列明:「香港特別行政區行政長官任期五年」。但在2005年,當特首董建華辭職後,為了不讓曾蔭權有做足十年特首的可能性,人大常委以《基本法》釋法形式夾硬把有關條文加插了《基本法》內沒有的「剩餘任期」概念,把曾蔭權的第一屆特首任期由五年扭曲到約兩年。

《基本法》第104條規定:「香港特別行政區行政長官、主要官員、行政會議成員、立法會議員、各級法院法官和其他司法人員在就職時必須依法宣誓擁護中華人民共和國香港特別行政區基本法,效忠中華人民共和國香港特別行政區。 」有關條文並沒有對宣誓列出具體要求;具體要求是以本地法例去實施與規管的。但在2016年,為了阻止一些政權不喜歡的人參與立法會工作,人大常委以《基本法》釋法形式夾硬把有關條文加插了《基本法》內沒有的各種具體宣誓要求,變相繞過香港立法會、進行香港本地立法。

換句話說,人大常委在行駛其《基本法》釋法權時根本就不是按法律考慮去做,而是以政治凌駕法律。

  問題(七):但既然《基本法》賦予了那麽大的解釋權給人大常委,他們只是依法辦事,為何還有人說釋法影響法治?

依法與法治是兩回事!北韓金正恩與其人民勞動黨都是依法辦事的,難道就是法治嗎?其實人大常委運用釋法權的各種法治問題已在以上問題下列出。總括來說,這包括:

超越法定權限,連「依法」都說不上;

釋法前只是在「自己人」之間做假徵詢;

釋法越權沒有方法去挑戰或糾正,基本上是一個非獨立、以政治掛帥的人大常委以「法律是任我說的,我說的就是法律」態度處理釋法;

這種心態亦確保釋法以政治考慮蓋過一切,條文被扭曲、法律原則全被拋諸腦外;

法院無論覺得理據恰當與否都要按這些所謂釋法判案。

  問題(八):以上一切只是一個受普通法訓練律師的一廂情願想法,不是嗎?內地是行大陸法的,上述那一套不適用!

先解釋一下何謂「大陸法」。這並不是「中國大陸法」的意思,而是「歐洲大陸法」的意思。大陸法源自古羅馬法典與法國的拿破崙法典。它與普通法的主要分別是法律大部分是以成文法作為主體,而不是像普通法那樣會夾雜了成文法及法院在判案時演繹出來的不成文法。內地的法律制度是按照大陸法與馬列共產主義法律原則的混合而形成的。

就此,大陸法本身就法治的基本要求是與普通法沒有分別的。大陸法地區大多都與大多普通法地區一樣,採用司法獨立、解釋法律不牽涉政治因素、權力機關不能越權等大原則的。內地法制那股政治、政權大於一切的思維並不來自大陸法、而是來自馬列社會主義法律理論的,根本與大陸法無關。而任何以全蓋過法的體制都很難以「法治」來形容。

所以,我都是勸那些左一句右一句都以「大陸法」為人大釋法不符合法治原則做「擋箭牌」的人士不要混淆視聽了。

  問題(九):說了那麼多,那究竟「四議員宣誓案」的判辭是彰顯法治還是危害法治?

我認為兩樣都不是。一個被迫要跟隨一個扭曲法律、扭曲法制的釋法來判案的判辭很難說得上是彰顯法治。但同時,雖然大家可以對判辭的法律結論有異議,不過要說法官是按照政治考慮、「歸邊」、不獨立地去作決定又絕對不是,說不上是危害法治。

我只可以說,這判辭赤裸裸地展示了人大常委釋法制度在設計與在實施上的醜陋。又或者可以這樣說,在這案件中,法院與香港就好像一個在河流下游而是靠河流供水與供魚的村落。村民眼見在河的水喝了會生病、何內的魚一條條地死去,但村民要無奈接受。為什麼?因為小村沒有其他水源,亦沒有辦法阻止位於河流上游的大城市在河流排污,荼毒水源。

  問題(十):難道今次裁決真的沒有任何正面的法治「故事」可言?

這又未必。判辭頒佈後,我有緊貼地留意各方與公眾的評論。支持或批評判決的評論都是難免的,市民亦就此有言論自由。但無論是泛民議員、非建制陣營意見領袖或帶非建制政見的市民,我都較少見到有類似「狗官」、「市民選議員,法官DQ議員」、「藍絲法官」、「華人法官向中華政權跪低」、「法官以政見判案」等衝着司法的無理批評。這與七警案那時建制陣營與其支持者對法院與法官的瘋狂批評構成一個很大的對比。

法治不只能靠政權去彰顯,民間的言行都能對法治有影響。「四議員宣誓案」判辭頒佈後這段時間令我看到,縱使有不少香港人對政權十分不滿、對有關判辭亦有很大的保留,他們大多都很克制,不會好像一群流氓一樣,無理取鬧地胡亂攻擊法院與法官。以當下多事之秋的香港來說,這仍是值得我們感到安慰的事。

任建峰
原文載於2017年7月15日《香港01

The tragedy of Liu Xiaobo is another victory for China

By Antony Dapiran

If you’d been surfing the Chinese Internet Friday, you might have read about Chinese President Xi Jinping extolling the virtues of free trade in his Thursday meeting with the Canadian Governor-General.

You might also have read about the bride in the coastal city of Qingdao who drove a bus to her own wedding. And you would surely have seen at least a handful of funny panda videos.

What you would not have read about is the death in Chinese custody of Nobel laureate Liu Xiaobo.

The Chinese government long ago won its battle for complete control of information in China, turning the Chinese internet into a “walled garden,” with all the news deemed fit to print by the Communist Party, and nothing more.

It is this victory that renders the Chinese government’s treatment of Liu Xiaobo tragically redundant.

Liu need never have been imprisoned, or could long ago have been paroled on medical grounds, and the vast bulk of the Chinese population would never have heard of him, much less read any of his writings. The Party had already won. In this context, the brazenness of Liu’s imprisonment appears even more chilling.

Logging onto the web in China over the last nine years since Liu’s imprisonment, you also would not have seen any reports of strong and persistent calls by global leaders for China to free their most prominent prisoner of conscience. But then you would not have seen such reports outside of China either — because it did not happen.

Since the financial crisis of 2008, China has grown in economic power and diplomatic self-confidence, while the West has been consumed in a vortex of its own internal squabbles and anxieties. Western countries have spent the years, fretting over the immigration and extremism resulting from almost two decades of constant warfare, and split by social and political division to a degree not seen in perhaps half a century. All of this anxiety manifested itself in such events as President Trump’s election and the Brexit decision.

To say the West has ceded global leadership suggests that there is a country to which it has ceded it. China, for its part, pretends to have taken that role, speaking out on issues such as climate change and free trade.

But every time China looks like it might be succeeding in taking its place on the world stage as a mature and confident global player, some internal issue — such as its treatment of Liu, or the government’s ongoing campaign against civil rights lawyers, or the extra-territorial abductions — will demonstrate just how unprepared, and how insecure, China’s leaders are.

It will be of some comfort to Beijing that, despite the expressions of grief and outrage at Liu’s passing, they will as usual be able to ride out this news cycle until the world’s attention moves on.

Another week, another meeting with a world leader extolling the virtues of free trade.

Antony Dapiran is a Hong Kong-based lawyer, Progressive Lawyers Group member and the author of City of Protest: A Recent History of Dissent in Hong Kong, published by Penguin. The opinions expressed here are his own.

Article originally appeared in CNN on 14 July 2017

【劉曉波與劉霞.博評】與伴侶走到人生盡頭 至死不渝的愛情

今個週末,我不談子說家,只談情說愛。

近日,有一對小情人的照片在網上及媒體報導上流傳。這對小情人名為劉曉波與劉霞。

相處每一剎,都癡癡醉,誰又會捨得你!《無奈》徐小鳳

病入膏肓的曉波兄已被癌魔折磨到骨瘦如柴,面色不濟,看起來連站起來都站不穩了。但他的左手仍然堅持緊緊的擁抱着他的愛人,精神欠奉的眼睛仍嘗試向愛人方向望着。

至於把她自己一生幸福與苦難都交給了曉波兄的霞妹,她深深感受到愛人的那份依依不捨。霞妹都很不捨得、內心簡直是傷透了,但她仍然從愛人已經有點冰冷的軀體找到溫暖,而因此很自然地把右手圍着愛人的腰,小鳥依人的愛慕眼神與微笑亦很不經意地散發出來。雖然霞妹從曉波哥的擁抱感受到他站立不穩,但她在他懷裏時以她的右肩膊放在他伸出來擁抱她的左手腋下,輕輕地撐起他。

原來只要共你活一天,凡塵裏一切可以別掛念。原來海角天際亦會變,原來生過死過深愛亦無變!《原來只要共你活一天》張學友
霞妹的哀悼、崩潰的日子還要來臨,但這就只能留給在曉波兄離開後再算了。(美聯社)

曉波兄與霞妹的每一個自發舉動、每一個不經意表情,都散發着愛。這對小情人深知大家能相聚的機會已無多、連唯恐相見恨晚的時間都沒有了,唯有把一切苦難、一切受到不義的對待、一切多年來因他人的不仁而失去的美好時光都暫且放下。雙方的眼中與心神中就只有對方,沒有其他。霞妹的哀悼、崩潰的日子還要來臨,但這就只能留給在曉波兄離開後再算了。

在這個兩情之中其中一方已幾乎走到盡頭的一刻,一對小情人就好像他們當初邂逅時一樣,愛情大過天,世界末日或時間終結他們都不會理會了。這不就是最純潔、最真摯、最刻骨銘心的愛情嗎?唯獨最可惜、最諷刺的,就是這一切是由一股歪風造成的。不過,這只讓世界更能見到曉波兄與霞妹的純與真,亦更為他們多年來被拆散而感到惋惜、甚至憤怒。

情若真,不必相見恨晚。見到一眼再不慨嘆!《情義倆心堅》張德蘭

人,未必能長久。但有至死不渝的真愛情在心中,情人之間就算只能有永別前的最後一眼,都是不枉此生的。如果到我或老婆走到人生盡頭時,我倆能有劉曉波與劉霞的這份愛情,儘管人生波折重重,有臨終深情相擁那一刻所帶來的心動,都已足夠了。

撰文: 任建峰 (執業律師,「法政匯思」召集人)

(原文載於2017年7月8日《香港01》)

What China’s Xi should learn from Hong Kong’s protest march

China’s President has traditionally visited Hong Kong only once every five years, swearing in the Chief Executive for a new five year term and then hastily making an exit before the traditional July 1 protest march.

For all the bluster about Beijing tightening its control over Hong Kong, President Xi Jinping’s visit for the 20th anniversary of the handover of Hong Kong from British to Chinese rule was no exception.

In the mold of the traditional emperor’s inspection tour, Xi’s visit was highly choreographed. Foregoing any mingling with Hong Kongers in the streets, the most prominent stop on Xi’s itinerary was pointedly a visit to inspect the troops of the People’s Liberation Army garrison.

In a closely-watched speech, Xi stated that any attempts to challenge Beijing’s authority over Hong Kong crossed a “red line” and was “absolutely impermissible.” Given the tone of official Beijing rhetoric towards Hong Kong in recent years, this was not a surprise.

However, Xi’s belief, stated in his speech, that “development” is “the golden key” to resolving the conflicts dividing Hong Kong society shows just how deeply Beijing misunderstands Hong Kong. Beijing seems to think that — just like in the rest of China — if only Hong Kong people were wealthier, they would be happier.

Xi’s departure before the protest commenced enabled both Xi and the Hong Kong administration to save face and avoid the embarrassment of a Chinese leader being present in a Chinese city holding a massive anti-government demonstration. It is a pity, however, because if Xi had stuck around he would have learned more about Hong Kong than from the rest of his short tour.

Authorities inaccurately reported that turnout was the lowest ever. The more reliable Hong Kong University Public Opinion Programme said the numbers were actually slightly higher than the past two years, although certainly lower than the huge numbers that marched in 2014 leading up to the Umbrella Movement protests.

There are those who would nevertheless say that falling attendance shows the protest spirit of Hong Kong and its aspirations for democracy are fading. However, walking among the crowds on Saturday, that is not what I saw.

What I saw — what Xi would have seen if he had surreptitiously joined the parade, perhaps cunningly disguised as his own impersonator — was a deeply engaged populace. That protesters still came in such numbers — despite thunderstorms and stifling heat, despite official obstruction, despite rumors of a coercive police approach — shows how committed Hong Kongers are to speaking out for causes they believe in.

These causes go far beyond politics. The protest route was lined with street stands promoting causes such as government-funded dental care for disabled people; “Fixing Hong Kong”, volunteers who repair poorly-maintained public housing; “Societas Linguistica Hongkongensis,” promoting the Cantonese language; “Water For Free,” discouraging bottled water; a group of residents from a remote district protesting a government decision to sell their local shopping mall; and a group supporting a Hong Konger imprisoned for 17 years in the Philippines on apparently trumped-up charges.

Meanwhile, in spite of Xi’s “red line”, a small group of protesters waved “Hong Kong Independence” banners, watched carefully by the police but nevertheless protected — at least for now — by Hong Kong’s constitutional guarantees of freedom of speech and freedom of assembly.

Like every July 1 rally, the march was testament to a lively and active civil society, unimaginable in the mainland which continues to crack down on civil society groups, lawyers, overseas NGOs and religious groups.

This civil society — and the accompanying impulse to speak out and to protest — is deeply ingrained in Hong Kong culture, and won’t just magically disappear with material “development.” The government must hear, and respond to, these diverse voices.

But if Xi had joined the march, he should also have been reassured, that these protests all arise from one common motivation: a love of Hong Kong and a desire to improve it for all of its populace. Now that is real development.

Antony Dapiran is a Hong Kong-based lawyer and the author of City of Protest: A Recent History of Dissent in Hong Kong, published by Penguin. The opinions expressed here are his own.

Article originally appeared in CNN on 2 July 2017

 

Meet Hong Kong as it really is, with Mainlanders moving in, Hong Kongers emigrating

by Antony Dapiran

 

Mornings in Hong Kong are like in no other city. For a city that heaves with a seemingly incessant energy, the start of every day presents a pause. Commuters have not yet flooded the subway system, the shopping malls are not yet open, the roads largely empty of traffic.

A delivery boy weaves his shaky bicycle across the tram lines, a basket of vegetables hanging off the handlebars. Elderly enthusiasts brandishing aluminium broad swords practise tai chi in a park. Down a side street, a taxi driver with a bucket and cloth scrubs down his gleaming red cab. Men linger with their newspapers over cups of tea and a breakfast of dim sum. Out on the harbour, a lone sampan crosses the sun-dappled water.

In a city in hyper-aware of time – of dates, and countdowns, and anniversaries – at this time of day, time itself seems to dissolve.

But if the return of sovereignty over Hong Kong to Mainland China on July 1, 1997, marked a new dawn, then 20 years later Hong Kong is facing a stifling tropical high noon. As Hong Kong marks the anniversary of the Handover, the general mood is dispirited, and much of the populace is in no mood for celebration.

Thousands turned up for June's candlelight vigil at Victoria Park, to mark the 28th anniversary of the 1989 Tiananmen ...
Thousands turned up for June’s candlelight vigil at Victoria Park, to mark the 28th anniversary of the 1989 Tiananmen Square crackdown. Bloomberg

When I first arrived in the city in 1999 to begin my legal career, Hong Kong was settling into its post-Handover way of life. The Asian financial crisis had dampened the celebrations – the Thai government floated the baht on the day after the Handover in 1997, triggering a crisis that engulfed most of Asia, and the Hong Kong stock and real estate markets plunged – but the sense was very much one of relief that things in Hong Kong had not really changed at all.

The horses still raced at Happy Valley, the expats still caroused in Lan Kwai Fong and the tourists still purchased watches and cameras in Tsim Sha Tsui. The annual vigil held on June 4 every year to commemorate the Tiananmen Square massacre went ahead as usual in 1998, the first time that the incident had been publicly commemorated on Chinese sovereign soil.

The city seemed to reflect back at me the optimism I felt as I rode the Star Ferry across the harbour, into the heart of the Central business district where the ageing boathands in their blue sailors’ uniforms caught the heavy ropes of the chugging green-and-white ferries with their gaffer hooks and slung them over the bollards of the pier.

I would emerge along with my fellow commuters out of the late modernist Star Ferry Terminal with its iconic Bauhaus clock tower, directly adjacent to my office building. Downstairs at the exchange, brokers in their red and gold vests would be filing into the trading-floor entrance, newspapers in one hand and lunchboxes in the other, to take their seats in time for the commencement of the day’s trading.

Passionate protest

World dignitaries and other guests at the Handover ceremomy at the Hong Kong Convention Centre watch the Chinese flag  ...
World dignitaries and other guests at the Handover ceremomy at the Hong Kong Convention Centre watch the Chinese flag flying after the Union Jack is lowered on July 1, 1997. AP

However, the calm belied a lingering anxiety. It was in my first bright year in Hong Kong that I also had my first experience of the city’s spirit of political protest. Early in 1999, the National People’s Congress, China’s national parliament, exercised its power to issue an interpretation of Hong Kong’s constitution, the Basic Law.

While the power to interpret the law, and thereby override Hong Kong’s own courts and legislature, clearly lay in Beijing’s hands, Hong Kongers were surprised at how readily – and quickly – Beijing had chosen to exercise it. The legal profession organised a silent march in protest at this undermining of Hong Kong’s rule of law, and I joined hundreds of fellow lawyers, all dressed in black, marching in silence through the evening heat to the Court of Final Appeal. There was a sense of community in the crowd that day – a sense of a passion for this city that we shared – that, while otherwise rare in Hong Kong, I found again and again in the crowds of Hong Kong’s political protesters.

I experienced it again joining the annual June 4 vigils, held every year in Hong Kong’s Victoria Park to commemorate the 1989 Beijing crackdown. Exiting the Causeway Bay subway station, you would emerge onto a neon-lit shopping strip. On this night, unlike other nights, the street will be crammed not with shoppers but with politicians and activists, promoting their causes and soliciting donations from the crowds as people make their way towards the park. Among them, you will find stalls selling a uniquely Hong Kong combination of conscience and commerce: small plaster replicas of the Goddess of Democracy, the statue made famous during the Tiananmen protests.

Police shepherd the crowds towards the floodlit sports pitches at the southern side of the park, where the mood grows increasingly more sombre. The park fills as tens of thousands of demonstrators of all ages file in, their faces illuminated by flickering candles. The park, ringed with apartment and office towers, is a forest of candlelight.

The British Union Jack flag is lowered at Government House on June 30, 1997,  for the last time.
The British Union Jack flag is lowered at Government House on June 30, 1997, for the last time. AP

The vigil is presided over by politicians representing the Hong Kong Alliance in Support of Patriotic Democratic Movements of China. They give speeches and lead the crowd in singing patriotic songs from the Tiananmen era; I would learn to sing Bloodstained Glory, an old People’s Liberation Army patriotic song extolling the glories of sacrificing one’s life for the Motherland. It did double duty both as a Hong Kong protest song and also when doing client entertaining in karaoke bars on the Mainland. I never did figure out which side was playing it straight and which had the ironic twist.

The vigils have continued, even as the organisers have faced criticism that Hong Kongers would better spend their activist efforts on the problems they face at home, rather than trying to promote democracy on the Mainland. But according to Tonyee Chow, vice-president of the Alliance, the two issues are directly linked.

“Implicit in our call for Hong Kong people to support the struggle for democracy inside China is that the struggle is intimately linked to the future of Hong Kong,” Chow says. “Only by working together and supporting each other would we have any hope of ending one-party dictatorship over both Hong Kong and China.”

Hong Kong? I am not used to hearing Hong Kong described as a dictatorship. “Yes, Hong Kong too!” Chow exclaims. “Don’t tell me the Party is not the de facto dictator in Hong Kong, even with the gloss of ‘One Country, Two Systems’.”

Today, there is almost no commercial activity that is not touched by the Mainland.
Today, there is almost no commercial activity that is not touched by the Mainland.

Jubilation and anger

My next awakening experience of Hong Kong’s protest culture came on July 1, 2003, the public holiday that commemorates the Handover, protesting against proposed anti-subversion legislation that would have significantly undermined Hong Kong’s freedoms. As I passed the news stands that morning, I recall seeing the front page of the anti-establishment Apple Daily newspaper screaming in huge red characters: “Take to the streets! See you there!”

I joined the 500,000 plus people who answered the call.

The Hong Kong Observatory issued a “hot weather warning” that day; temperatures had climbed to 32 degrees by early afternoon when the march was due to commence. As protesters converged on Victoria Park, the subway operator MTR Corporation was forced to dispatch extra trains to cope with the large crowds. They gathered under the hot sun, dressed in black in symbolic mourning for Hong Kong, and carrying banners calling for the resignation of Chief Executive Tung Chee-Hwa.

Hong Kong is shaking off the malaise of recent years, as young Hong Kongers engage with their city more than ever.
Hong Kong is shaking off the malaise of recent years, as young Hong Kongers engage with their city more than ever. AP

Participants were young and old, from all walks of life. Parents carried young children on their shoulders. Prominent entertainers and media figures joined the march, as did groups representing various industries and professional bodies.

The mood of the crowd encompassed both jubilation and anger – anger at the government and the unpopular secretary for security Regina Ip, who had sponsored the legislation, and suggested that people would attend the rally simply because they had nothing better to do on a public holiday. Some chanted: “We march for freedom, not for fun” in riposte. But the crowd was also buoyed by the positive sense that people were united; there was, above all, an overwhelmingly optimistic spirit.

The march wound its way through the busiest districts of Hong Kong, from Victoria Park through the Causeway Bay shopping district to Wan Chai, to the government offices in Central. The crowd’s voices echoed down the canyon of office and apartment towers lining the narrow streets as they shouted: “Tung Chee-Hwa resign!”

Many waited hours for their turn to march. The crowd was so large that people were still arriving at Victoria Park to begin their march hours after the first protesters arrived in Central, and the last marchers did not arrive at their destination until 9 o’clock that night, more than six hours after the march began. The protest was successful. In its aftermath, the Article 23 legislation was withdrawn, Ip resigned, and Tung himself would resign a year later.

Large-scale protests have been held on July 1 every year since. It must surely rankle with Beijing that the anniversary of the Handover has become an annual opportunity to vent dissatisfaction with the government and voice demands for increased democracy, civil liberties and other political causes.

While the essence of the annual protest remains its pro-democracy, anti-government message, the ambit has widened to embrace all manner of political and social causes. A typical July 1 protest hosts street stalls promoting press freedom, academic freedom, religious freedom, women’s rights, LGBTQ rights, seniors’ rights, housing equality, various environmental causes and the rights of animals, from the Lantau Island wild oxen to sharks who die to have their fins put on Hong Kong’s wedding banquet tables.

A caring community

I would experience this protest camaraderie most keenly, however, during the Umbrella Movement. In August 2014, Beijing announced that the long-promised “universal suffrage” for election of the territory’s leader would be limited to a choice among candidates pre-vetted by a Beijing loyalist-dominated nominating committee. This prompted the Umbrella Movement protests, in which thousands of protesters occupied streets in three key business districts across the territory for nearly three months.

Anyone who has visited Hong Kong knows that it thrives in the night.
Anyone who has visited Hong Kong knows that it thrives in the night. iStock

The Umbrella Movement unfolded, literally, on my doorstep. My commute to my office in Central was transformed from a 20-minute trudge along heavily trafficked roads into a daily carnival. Every night, I would join the other curious office workers stopping by on the way home from work, picking my way between rows of brightly coloured tents on the occupied highway, browsing through the latest artwork or enjoying an ad hoc musical performance.

Crowds would gather to listen to student leaders standing on the makeshift speaker’s platform, a plank between a couple of step ladders, addressing the crowd through a PA system powered by a diesel generator.

Vast banners hung from footbridges splashed with black characters: “I want genuine universal suffrage!” “C.Y. Leung Resign!”

The protests prompted an outburst of creativity: the anonymous civic greenery of a roadside planter was replaced with a freshly planted organic vegetable garden; posters covered the walls of public and commercial buildings; slogans and sketches in chalk decorated the roads and footpaths and walls; and the protest sites overflowed with paintings, sculptures and installations. Meanwhile, over in the ever-expanding Homework Zone, students sat at improvised desks and worked late into the night, as volunteer tutors moved among them to offer help with homework.

The cliché of Hong Kong as a hectic, impersonal, high-pressured city was at a stroke undermined: here was a community full of generosity, kindness, selflessness. For every inconvenience – a rerouted bus, a cancelled tram – there were a multitude of unexpected new conveniences: free bottled water, public artwork, first aid and maths tutoring. And walking among it every evening, I felt truly part of a community, in the same way I had done during that hot evening among my fellow lawyers 15 years earlier.

When the protests ended, after 79 days, thousands turned out at the main Admiralty protest site for what was one last nostalgia-filled night. Visitors posed for photographs and collected keepsakes. Parents brought their children, with one parent commenting to me: “I want my children to see this, and remember it, so they know what Hong Kongers are capable of.”

In their immediate aftermath the Umbrella Movement protests were judged to have failed – Beijing refused to back down – but a number of young activists who rose to prominence during the protests were elected to Hong Kong’s legislature in late 2016, with the support of energised and politically aware young voters. Celebrations of their success were short-lived, however, when two of the legislators deliberately misread their oaths in a slight to the Mainland and Beijing intervened to disqualify them from their positions by issuing a further interpretation of the Basic Law.

An additional eight pan-democrat legislators are now facing similar disqualification proceedings which, if successful will significantly undermine faith in the city’s electoral system.

Antony Dapiran is a Hong Kong-based lawyer and the author of "City of Protest: A Recent History of Dissent in Hong ...
Antony Dapiran is a Hong Kong-based lawyer and the author of “City of Protest: A Recent History of Dissent in Hong Kong”, published July 1 by Penguin, $9.99. Supplied

An unequal society

However it is not just politics that has people feeling dispirited. The economy and living standards in Hong Kong have remained near-stagnant since the Handover. Hong Kong’s GDP was 16 per cent of China’s in 1997. Today it is less than 3 per cent. Average monthly wages have only inched ahead over 20 years, going from $HK11,113 ($A1880) in 1997 to $HK15,451 ($A2614) at the end of 2016. (By comparison, Australian average wages more than doubled over the same period.) Inequality, meanwhile, has continued to grow, with the wealth gap hitting a record high in Hong Kong last year, making Hong Kong the world’s second most unequal city after only New York.

At the same time, property prices have spiralled, recently reaching the same levels last reached in the 1997 property market bubble, and making Hong Kong the world’s most unaffordable property market. This is despite various government cooling measures such as double stamp duty on non-local (primarily Mainland) buyers. In order to market their properties at an affordable level to entry-level buyers, developers are perversely building apartments of a comparable size to the prison cells at Stanley Prison where former Chief Executive Donald Tsang found himself earlier this year after being sentenced to 20 months’ imprisonment for misconduct in public office.

Tsang is one of only three people to have held the position since the Handover. It was not a uniquely inauspicious end for Hong Kong leaders. The first, Tung Chee-Hwa, resigned before completing his term in the face of massive public protests. The latest, C.Y. Leung, concludes his first and only term on June 30 with a public approval rating of 38 per cent, a record low.

As in other places, it is the younger generation that has suffered the most from these economic trends. “Hong Kong is increasingly becoming a divided society,” says Kacey Wong, a Hong Kong artist and activist. Wong is a fixture on the Hong Kong protest scene, often combining his own custom-made props, artworks and performance art into his protests. “What we are seeing is actually generational polarisation, disguised as political polarisation.”

Those members of the older generation who are part of the establishment, with wealth, power, business linkages to the Mainland and a second passport if necessary, are quite happy with the status quo of what Wong describes as a “Chinese communist colony state”.

Those Mainland business linkages may be key to what Wong calls the “oversimplified sentiment of Chineseness” with which the older generation identifies. At the same time as Hong Kong has stagnated, the Mainland has boomed. As a result, Mainland influence in Hong Kong has grown significantly in recent years.

Mainland real estate developers have won the majority of recent Hong Kong government land auctions, willing to pay prices that make even seasoned Hong Kong developers blanch. International and local Hong Kong firms seeking prime Central office space are finding themselves priced out of the market by Mainland companies seeking to plant a flag in the city.

Lawyer and author Antony Dapiran: "Paradoxically, Hong Kong is now a more lively and interesting city in which to live ...
Lawyer and author Antony Dapiran: “Paradoxically, Hong Kong is now a more lively and interesting city in which to live than at any stage in the past 20 years.” Supplied

According to real estate firm JLL Research, Mainland companies have accounted for half of the take-up of Central real estate so far this year. “Mainland firms prefer top tier office buildings and are willing to pay a premium to secure it,” says Edward Noble, Director at JLL Hong Kong Markets. “Strong PRC demand, coupled with the growth in Central rents, has accelerated the trend of traditional MNC tenants relocating to other districts.”

This has included international financial institutions, hedge funds, and law firms, Noble says.

“Have you heard the news?” a colleague recently asked me. One of the big London-based international firms was leaving Central, decamping to expansive office space – at half the price – further down the Island, a move that was previously unthinkable.

Mainland financial institutions are taking leading roles on listings on the Hong Kong Stock Exchange and in financing transactions – partly by accepting pricing or terms that Western banks consider uncommercial. And it has partly become a point of national pride: when China International Capital Corporation, China’s first home-grown investment bank went public last year they appointed only one United States investment bank to their syndicate of eleven underwriters. Chinese banks dominated.

When I began working in Hong Kong shortly after the Handover, a significant volume of commercial transactions were purely domestic, and the Hong Kong tycoons – Li Ka-Shing’s Hutchison and Cheung Kong, the Kwok brothers’ Sun Hung Kai – and old colonial conglomerates Jardines and Swires dominated the business landscape. Today, there is almost no commercial activity that is not touched by the Mainland, whether a Mainland entity is counter-party, shareholder or financier.

Culture gap

Increasing Mainland involvement in the economy has demanded Mandarin language skills and professionals who have a cultural familiarity with the Mainland. This has squeezed out not only the traditional “expats” of yore but also local Hong Kong graduates. At the recruiting fairs, where we gather to woo the brightest young graduates from law schools in Hong Kong, Australia and the United Kingdom, all conversations begin, and many end, with the same question: “How’s your Putonghua?” (The term for Mandarin in China.)

In particular, as the Mainland continues to crack down on corruption and capital flight, Hong Kong continues to be an attractive escape route. “That means more money and Mainland talent will come stomping into Hong Kong,” says artist Wong. “But it does not mean that money will go into the pockets of Hong Kongers.”

Hong Kongers feel their rights and freedoms distinguish their lives from the rest of the country to which they have been ...
Hong Kongers feel their rights and freedoms distinguish their lives from the rest of the country to which they have been returned. Bloomberg

As a result, Mainland Chinese have become the “new expats”, as they take an increasing share of the jobs in investment banks, accountants and law firms, and other related professional service industries that have built up around Hong Kong’s financial services and trading hub economy. At the same time, local Hong Kong youth are increasingly talking about emigrating. That in itself may not come as a surprise. However, I was surprised to hear that their destination of choice was not Australia, Canada or the United Kingdom but another liberal democracy much closer to home. “They want to go to Taiwan,” explains Wong. “It is a place with familiar language and culture. These young people are seeking not just economic opportunity but cultural opportunity.”

It is the culture gap between Hong Kong and the Mainland that has made the increasing Mainland dominance in Hong Kong problematic. Hong Kong had traditionally sought to build its identity and distinguish itself as a place apart from the rest of China on the basis of wealth. Many in Hong Kong thought of their Mainland cousins as poor, unsophisticated bumpkins, a far cry from the urban sophisticates living in the bright lights of Hong Kong. However, that distinction has failed to hold and Hong Kongers have now found themselves reliant on those same Mainland cousins to support Hong Kong’s tourism and service industry-based economy.

Their resentment is often hard to hide. “In shops, I get the feeling that they treat me badly as soon as I start to speak Mandarin,” says Jasmine, who came from the Mainland to Hong Kong to pursue post-graduate studies after graduating from one of China’s top universities. “People may answer me when I ask for directions, but may roll their eyes at the same time.”

I have experienced it myself, using Mandarin to ask for directions in the deeper parts of Kowloon where English is less prevalent. I shamefully have not learned to speak Cantonese, but I know enough to understand the response: “I dunno! I’m not a Mainlander!”

In towns near the Shenzhen border, protesters have rallied against traders from the Mainland (portrayed as “locusts”) who were said to be flooding local shopping districts to make bulk purchases of medicines, milk powder and other products whose Mainland purveyors are viewed with mistrust. Protesters decried the fact that these traders were squeezing out small local businesses in the process.

In the district of Mong Kok, things became heated over the so-called “Dancing Aunties”: middle-aged Mainland Chinese women who gather on pedestrian streets to sing and dance to Chinese revolutionary music, blasted through loudspeakers at a disturbingly high volume.

It is perhaps slightly anti-social, largely harmless, but a red rag to the Hong Kong localist groups who gathered on a hot Hong Kong night to protest against what they called a “public nuisance”, waving the old British colonial Hong Kong flag and hurling insults. Pro-China groups soon gathered in support of the Dancing Aunties, waving Chinese national flags and singing the national anthem. As scuffles broke out, the police were called in to separate the two sides, and set up a cordon to create a safe zone for the aunties to continue their dance routines. It may have been the first Chinese revolutionary dancing evening that ended with the deployment of pepper spray.

With this encroachment of Mainland culture and their pride rooted in materialism undermined, there has emerged a deeper pride among Hong Kongers, based on the rule of law, civil liberties, rights and freedoms, and clean and accountable government. These values, referred to colloquially and in government slogans as “Hong Kong Core Values”, have become the answer to the question: “What does it mean to be a Hong Kong citizen?”

The 2014 Umbrella Movement occupied the streets of Hong Kong.
The 2014 Umbrella Movement occupied the streets of Hong Kong. AP

A matter of trust

Hong Kong’s rights and freedoms – just as much as the right to conduct business and make money under a capitalist system – are what Hong Kongers feel distinguishes their lives from the rest of the country to which they have been returned.

Hong Kong’s key competitive advantage vis-à-vis the rest of China is in the end a very simple one: trust. In Hong Kong, unlike in much of the rest of China, you trust that you will have a fair hearing before the courts, you trust that officials will not be on the take, you trust that government agencies will treat everyone fairly and impartially. More than that, you trust that your food is hygienic, you trust that the milk powder is safe for your children, you trust that the medicines sold in your pharmacies are not fake. Hong Kong needs to fight to maintain this trust, and it is doing so by collectively sustaining Hong Kong “core values”.

These values have seemed particularly precious as increasing Mainland influence now threatens to undermine them, and by extension Hong Kong identity itself. Beijing has been increasingly muscular in exercising its powers in Hong Kong in recent years. Particularly disturbing have been extra-judicial abductions from Hong Kong streets, both of publishers of books the contents of which Beijing finds subversive or simply embarrassing, and of mainland businessman Xiao Jianhua, for certain unspecified crimes.

It is clear that Beijing will no longer tolerate Hong Kong being used as a base for activities that seek to undermine the interests of the Party. The key question for Hong Kong’s future is: where will the line demarcating the Party’s interests be drawn? Obviously, it includes producing and distributing materials undermining the Party and its leaders. It seems, from the legislator disqualifications, that advocating or even discussing Hong Kong independence – which touches the very sensitive nerve of territorial integrity – also falls within this category of unacceptable activity.

In Beijing’s view, this also extends to self-determination, which is seen as a back door to independence. However, keep inching in this direction and you very quickly reach the point where criticising the (Mainland-anointed) Hong Kong government itself is considered yet another means of indirectly undermining Party interests, and therefore unacceptable.

At this point, Hong Kong’s much-vaunted rights and freedoms will exist on paper only. And then, only until 2047 – the year when Hong Kong’s constitutional guarantee of “fifty years without change” to the Hong Kong capitalist system and way of life ends. Under this view, 2047 might be a kind of sunset for Hong Kong as we know it, and the final step on the path to that much-maligned of destinations: “just another Chinese city”.

A ray of hope

Apartments aimed at  entry-level buyers are of a size comparable to the prison cells at Stanley Prison.
Apartments aimed at entry-level buyers are of a size comparable to the prison cells at Stanley Prison. Bloomberg

It is this seemingly inevitable convergence with the Mainland that has many in Hong Kong pessimistic. Chow of the Alliance has an apocalyptic view. “I don’t think Hong Kong democracy has a chance unless the power of the Party is weakened in some way on their home soil; and it is likely that such a change would not happen without much societal upheaval or even bloodshed,” Chow says. “Hong Kong would simply not be spared when that kind of disturbance occurs just across the border. All we can do now is to be prepared to pick up the pieces, to build something good out of the ashes.”

But there is some reason to be optimistic. The Umbrella Movement and its aftermath have shown that Hong Kong’s youth are active, engaged and care deeply about their home and its future. At the same time, ongoing conflicts have made Hong Kong a contested space, and thus a more interesting space.

Hong Kong is shaking off the malaise of recent years, as young Hong Kongers engage with their city more than ever, with increased cultural activity, frequent street stalls and public activism extending into heritage and environmental issues.

“There has been a post-Umbrella renaissance, especially in Hong Kong’s poorer neighbourhoods,” says artist and activist Wong. He describes fellow artists opening pop-up stores selling arts and cultural products in Sham Shui Po, a working-class neighbourhood in Kowloon, “Not for commerce, but to spread culture, to promote the utopian state that all of us carry in our minds. It’s exciting!”

Hong Kong – paradoxically – now is a more lively and interesting city in which to live than at any stage in the past 20 years.

Hong Kong identity has also found a resurgence in an embrace of heritage and the environment. When the beloved Star Ferry pier was demolished in 2006 to make way for a new government land reclamation – the Bauhaus clock tower relegated to landfill and a new faux Victorian pastiche pier built a kilometre further out to sea – protesters turned out to mourn not only the destruction of a heritage building but the loss to Hong Kongers’ “collective memory”, the memory of thousands of journeys such as those I took in my first days in Hong Kong, across the glittering harbour mornings and into the heart of Central.

Anyone who has visited Hong Kong knows that Hong Kong thrives in the night. Rainbow-hued neon signs arch across the streets, lighting up the sky above bustling street markets. The cha chaan teng (teahouses) buzz well after midnight with youngsters scoffing down curried fish balls and milk tea. The mah-jong tiles of my neighbours rattle and clack until dawn. And as the late-night revellers stumble home, thinking it is still last night, those of us up early to enjoy the Hong Kong morning know that it is already a new day.

Antony Dapiran is a Hong Kong-based lawyer and the author of City of Protest: A Recent History of Dissent in Hong Kong, published July 1 by Penguin, $9.99.

Article originally appeared in The Australian Financial Review on 30 June 2017

China Is Rapidly Squandering the Unique Opportunity That Hong Kong Represents

Article was originally published in TIME on 14 November 2016

It is normally difficult to get lawyers to stop talking and stay quiet. But that is exactly what happened last Tuesday, when 2,000 of them, all dressed in black, marched through the center of Hong Kong in a dignified “silent protest” against a move by the Chinese government to directly intervene in the city’s legal affairs.

At the beginning of last week, the executive body of China’s parliament, the National People’s Congress Standing Committee (NPCSC), issued an “interpretation” of the Basic Law, Hong Kong’s miniconstitution that has provided the legal framework for the territory since its handover from Britain to China in 1997. The purpose of the interpretation was — and its probable legal effect would be — to bar two elected legislators from taking their seats in Hong Kong’s legislature. These lawmakers, Yau Wai-ching, 25, and Sixtus “Baggio” Leung, 30, have been elected on a platform advocating Hong Kong independence. Their specific offense (at least in the eyes of Beijing) was to unfurl a banner proclaiming “Hong Kong Is Not China” and to pronounce the country’s name in a derogatory manner during their swearing-in.

The interpretation has caused profound disquiet within Hong Kong, and particular consternation within the legal community. Immediately after the interpretation, the Hong Kong Bar Association expressed “deep regret” over the NPCSC’s action and stated that this would undermine “public confidence in the rule of law in Hong Kong” and its tradition of judicial independence. Dennis Kwok, the legislator representing the legal sector, quickly organized the silent protest, which was the biggest demonstration by the city’s lawyers since the handover, and which terminated at the Court of Final Appeal, an imposing neo-classical building that stands as a symbol of the separate legal system enjoyed by Hong Kong.

There is little dispute that the NPCSC has the legal power to issue interpretations of the Basic Law. But there is also a widespread sentiment (at least in Hong Kong, if not across the border) that it is a power that should be used only in very rare circumstances because of the grave damage it is capable of causing. Even Hong Kong’s former Chief Justice, Andrew Li — a respected figure who speaks in the precise, cautious manner typical of British-trained patricians — has stated in no uncertain terms that the NPCSC should refrain from using its power in a manner that overrides the Hong Kong courts: “Although it would be legally valid and binding, such an interpretation would have an adverse effect on judicial independence in Hong Kong.”

Wilson Leung and Kevin Yam

Progressive Lawyers Group

China breaks its promise on Hong Kong

Author: Alvin Y.H. Cheung, New York University

On 19 December 1984, amidst great fanfare, the United Kingdom and China signed the Sino–British Joint Declaration on the Question of Hong Kong. It contained extensive guarantees of Hong Kong’s autonomy, rule of law, and fundamental rights — all of which would remain entrenched until 50 years after the transfer of sovereignty. On the day the treaty was signed, Deng Xiaoping confidently declared to Margaret Thatcher that ‘China will always keep its promises’.

Yet, over 30 years later, officials in Beijing and Hong Kong — and certain East Asia Forum contributors — would rather sweep it under the carpet. In late 2014, Secretary for Constitutional and Mainland Affairs Raymond Tam claimed that ‘the provisions of the Joint Declaration have been fully implemented and its purpose and objectives have also been fully fulfilled’. Chen Zuo-er, former Deputy Director of the Hong Kong and Macau Affairs Office, has made similar statements.

The March 2015 report into the Joint Declaration by the UK House of Commons Foreign Affairs Committee is a well-timed reminder of Beijing’s broken promises. It is a reminder that the Joint Declaration contains clear and ongoing Chinese commitments under international law. But it should also serve as a warning to Hong Kongers and to China’s neighbours and trading partners.

The report drew particular criticism for its examination of Chief Executive electoral reforms for 2017. Critics argue that the Joint Declaration contains nothing on democratisation and that it allows the Chief Executive to be chosen by ‘elections or consultations’. But that is too simplistic an interpretation. There are established rules on treaty interpretation, codified in the Vienna Convention on the Law of Treaties (to which both the UK and China are parties). Once these rules come into play a very different picture begins to emerge.

At heart, the issue is straightforward: China has declared that Hong Kong voters can ‘elect’ their Chief Executive. But, under international law, no reasonable interpretation of ‘elections’ could include the process Beijing has ordained for Hong Kong, where voters rubber-stamp a selection made by a stacked nominating committee. Although the committee did not accept that the Joint Declaration required democratic elections, it also rejected Beijing’s ‘electoral’ prescription. Such a process offered no ‘genuine choice’ and was inconsistent with Hong Kong’s promised ‘high degree of autonomy’.

The report also highlighted other instances of backsliding. The Joint Declaration expressly guarantees fundamental rights, such as freedom of the press and of assembly. Yet there is growing evidence that these rights are being undermined.

Press freedom is a notable example. Self-censorship and political pressure from media bosses and advertisers led the Hong Kong Journalists’ Association to call 2014 the darkest year for press freedom in decades, even before the Umbrella Movement. The protests triggered new concerns, such as violence against journalists and police obstruction. The international media — despite the occasional piece of ill-informed reporting — became a crucial source of information, largely due to political censorship and harassment of local media. The report joins others by the PEN American Center and the International Federation of Journalists in expressing international alarm at these developments.

The Umbrella Movement also brought limits on freedom of assembly to the fore. The use of tear gas on 28 September 2014 in particular drew condemnation from the Hong Kong Bar Association and other informed observers. Despite sporadic outbreaks of violence, there is abundant evidence that the protests were largely peaceful. On any reasonable account, the use of police force was unnecessary and disproportionate. The committee rightly expressed concern over these instances of police brutality.

Critics may argue that the Hong Kong government has spoken up in defence of fundamental rights. But the government’s actions speak far louder. The failure to investigate violence against journalists, and ongoing official retaliation against protesters — including a police attempt to send a 14 year old girl to a children’s home for drawing with chalk — are creating a ‘climate of impunity’. The committee was right to be sceptical of official rhetoric.

The committee also noted fears of inroads into Hong Kong’s promised autonomy. The report cited the State Council’s White Paper of June 2014, Beijing’s 31 August 2014 decision on Chief Executive elections, and other instances of Beijing intervention as evidence of this trend. If, as the committee acknowledged, the Hong Kong government is not trusted to consider the rights and interests of Hong Kongers, there is no reason why the UK should remain silent when China defaults on its promise of a ‘high degree of autonomy’.

The report carries a sobering message for Hong Kongers: they should not expect London to speak for them. The UK Foreign and Commonwealth Office (FCO) received well-deserved criticism for ‘bland’ and ‘misleading’ language in its reports on Hong Kong, as well as its insipid response to Beijing’s obstruction of the inquiry. Yet the committee remained strangely ‘satisfied’ of the FCO’s commitment to the treaty. In light of this, Hong Kongers should take the lead in demanding that Beijing fulfil its promises in the Joint Declaration.

But the report should also alarm China’s neighbours and trading partners. Beijing’s desertion of the Joint Declaration suggests that it is a ‘fair-weather adherent’ to international law. In that light, China’s trading partners ought to ponder whether China will abide by its plethora of bilateral investment treaties when these commitments counter Beijing’s perceived interests. ASEAN members, too, might rightly wonder whether China would commit to a maritime Code of Conduct — if one can even be agreed. The days of China always keeping its promises, it seems, are over.

Alvin Y. H. Cheung is a Visiting Scholar at the US–Asia Law Institute at New York University and a member of the Progressive Lawyers’ Group in Hong Kong. He gave written evidence to the Foreign Affairs Committee as part of its inquiry.

Article was originally published in East Asia Forum on 7 April 2015