A 13th Procrastination: The Nuclear Option

In which Beijing presses The Button

Dear friends

First to get the formalities out of the way: I am Antony Dapiran, author of City on Fire: The Fight for Hong Kong, and this is A Procrastination, an email update from Hong Kong. You can always write to me by replying to this email, and if you want to unsubscribe you can do so with one click at the footer of this email.

Well, it had to be unlucky 13 didn’t it? In this edition: Hong Kong is getting a national security law; and some much-needed consolation.

Beijing goes nuclear

You will have seen the news that Beijing’s National People’s Congress announced on Friday its intention to draft a national security law for Hong Kong — outlawing secession, subversion, terrorism, and foreign interference — and to apply it directly to Hong Kong by decree, over the heads of Hong Kong’s duly elected legislature.

This is the Nuclear Option: Beijing’s ultimate power to impose whatever it wants on Hong Kong, outside and above Hong Kong’s constitutional, political and legal structure.

I spoke in some detail about the proposal and its implications on Radio New Zealand’s Sunday Morning program: you can listen to my analysis here (~15 minutes).

For the details behind the headlines, you can read a full translation of the relevant NPC decision courtesy of China Law Translate, and an excellent analysis of the technicalities, including the expected NPC legislative process, by NPC Observer.

The devil will of course be in the details of how exactly the law is drafted. Referring to either Hong Kong’s previous proposed Article 23 legislation from 2003 (available in this LegCo brief) or Macau’s Article 23 national security law is probably of limited value. This law will have a slightly different scope than Article 23, and will also be a mainland-drafted law, even if drafted such that it can be applied directly in Hong Kong. All of which is just to say: we know this will be awful. We just don’t know yet exactly how awful.

But here I want to focus on four specific points for your further reflection:

1. China’s secret police are coming to Hong Kong

By far the most alarming section of the NPC decision to me was paragraph 4, which provides that mainland government departments with responsibility for national security will establish branches in Hong Kong to carry out their work. This opens the door for PRC Ministry of State Security agents – China’s secret police – to officially and legally operate in Hong Kong, creating a parallel system alongside Hong Kong’s police and courts for investigating and punishing national security-related offences.

(I had to laugh at pro-Beijing toady Maria Tam’s reassurance that, “I’m not worried about anybody being arrested by a police officer from the mainland and then taken back to China for investigation or punishment. It is not, not, not going to happen.” Because it, er, has, has happened already. And that’s when they’re not even supposed to be operating here.)

With this development, the firewall between the Hong Kong and mainland legal and security systems will be completely demolished, with no apparent safeguards, an outcome far worse than anything threatened by the proposed extradition law which ignited last year’s protests.

Of course this would appear to be completely in breach of Article 22 of the Basic Law (which provides that central government departments may not interfere in Hong Kong), but Beijing doesn’t even pretend to care what the Basic Law says any more. Which leads me to my next point…

2. The Basic Law — and Hong Kong’s rule of law — is in tatters

This move by Beijing is a clear violation of the Basic Law, Article 18 of which provides that Beijing may only legislate for Hong Kong in matters of foreign affairs, defence and other matters outside the scope of Hong Kong’s autonomy. Article 23 of the Basic Law provides that Hong Kong should enact the national security legislation “on its own” – wording that suggests national security is clearly within the scope of Hong Kong’s autonomy, and would seem to preclude Beijing intervening in the way that it is now doing.

(The Hong Kong Bar Association issued a strong statement today similarly arguing that “the NPCSC has no power to add the HK National Security Law under Annex III of the Basic Law via the mechanism provided under Article 18 of the Basic Law”.)

But if it wasn’t apparent already from the Article 22 fiasco a few weeks ago (in which Beijing declared its agencies beyond the scope of the Basic Law’s prohibition on interference in Hong Kong), it is clear now: the Basic Law means whatever Beijing wants it to mean.

The immediate casualty is Hong Kong’s rule of law: when the constitution can no longer be understood by a plain reading of its words; when the criminal justice system is complemented by a shadowy parallel system of state security agents; when the government presumes to give instructions to the judiciary about their patriotic duties, what hope can there be for the rule of law?

3. Foreign entities and individuals will be a target

From very early in the protests last year, a narrative emerged from Beijing and the Hong Kong government blaming the unrest in Hong Kong on the work of malign “foreign forces” seeking to cause trouble for China.

This “foreign forces” narrative has been drilled consistently by offical media and government spokespeople, and is one of the specific targets of the new law, which will criminalise “activities by foreign and overseas forces that interfere in the affairs of Hong Kong”.

This should be extremely alarming for:

  • foreign media organisations and reporters (who have been accused by the pro-Beijing press of being CIA agents);

  • foreign NGOs (who have been sanctioned by the Chinese government for being among those “foreign forces” causing trouble);

  • foreign academics (Beijing blames foreign interference in the education system for damaging Hong Kong’s youth); and

  • any foreign business or individual whose home country has a turbulent or strained relationship with China.

Which is to say: We are all potential targets.

4. Beijing sees this as an opportunity for a “reset”

Beijing is prepared for strong pushback, and indeed may even be welcoming the opportunity to reset expectations in Hong Kong.

Pro-nationalist Chinese paper the Global Times quoted a mainland political expert who said that the move “will inevitably incur fierce reaction and protests in the city,” but added that, “the central government’s determination would also change the psychological expectations of pan-democratic groups, which might reverse the situation in Hong Kong.”

Beijing’s aim appears to be to break the spirit of the pro-democracy movement once and for all, and to remake the city in an image after its own desire.

A line appearing in the increasingly strident statements coming out of Beijing’s Hong Kong and Macau Affairs Office recently jumped out at me: “Hong Kong is China’s Hong Kong.”

On the one hand, the statement could be read as a message of “hands off” to foreign governments. But to me it rather seems to be correcting any misapprehension that Hong Kong might in fact be the Hong Kong people’s Hong Kong. This is not the language of stewardship used by a government ruling with the consent of the governed. This is the language of possession used by a coloniser.

Many of us had gotten used to a particular idea of Hong Kong, a view of the city as a bastion of freedom in Asia. Hong Kong has been a place where you can publish what you like, make whatever artwork and screen whatever movies you like, criticise governments near and far, organise and fund-raise for whatever cause you wish to advocate.

This idea of Hong Kong has always rankled the CCP. And now they are moving to obliterate it.

The loss will be, as I have written elsewhere, not just that of the Hong Kong people, but China’s, and the world’s.

Nourishment & Consolation

Jenny Offill’s new book Weather is centred on a young woman juggling her roles and responsibilities — as mother, wife, sister, friend, professional — all in the face of the overwhelming anxiety of climate catastrophe. While I do recommend the book, it is not the book itself that is my source of nourishment and consolation this week.

Rather, the consolation comes from a website Offill made specifically to accompany the book. Offill observed that authors of “climate change books” recognise the need to avoid paralysing their readers with despair, and so always inject into their books an “obligatory note of hope”. Offill rejected this approach for her book as too pat, instead shifting her note out of the book and onto a website: “Obligatory Note of Hope”. (The last page of the book contains the website address, and Offill has spoken of the site as an integral part of the book.)

In particular, the “Tips for Trying Times” contained on Offill’s site are a rich source of nourishment and consolation for any kind of trying times you might be facing: climate catastrophe, global pandemic, oppression by totalitarian regime, or creative block. All of which can be, in their own way, trying for us all.

And finally

A photograph below from Sunday’s protests in Causeway Bay and Wan Chai. It was an odd day: police, consistent with their recent playbook, intervened quickly (road blocks; stop-and-search) and forcefully (tear gas; water cannon) to stop the crowd gaining a critical mass. But that didn’t deter thousands from turning out — despite social distancing rules and the Public Order Ordinance making this a double-whammy of an illegal gathering.

And after the National Security Law comes into force, waving a flag like that fellow below will likely also be illegal.

I wonder whether reproducing it in a newsletter will be too?

With best wishes to you all

Antony


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