The so-called “Security law” for Hong Kong: a classification

The so-called “Security law” for Hong Kong: a classification

Author: Prof. Dr.Hans van Ess

At the end of August 2019, this author wanted to photograph one of the rare posters in an underpass in Hong Kong that called for a demonstration on August 31. When the cell phone was pulled out, a Hong Kong citizen came over, tore down one of the posters and threw it into a trash can with a contemptuous expression on his face. The body language gave its clear message: You are wrong about what is happening here! It was also fitting that the daily talks I had during this visit to Hong Kong hardly revolved around the concerns of the demonstrators, but primarily around the economic disaster that they had triggered. Rooms in luxury hotels were affordable, bars were empty, and the flight schedule was thinned out considerably. Fears were voiced that the traditional airline Cathay Pacific would soon have to be sold entirely to Air China. Two months later, I met a colleague from Tsinghua University in Beijing at an event in Italy. As we sat together on the bus to the airport, I thought that the opportunity would be a good one to find out from him what people think about Hong Kong at home without annoying eavesdroppers. He calmly told me that it was perfectly clear that the Trump administration and the British were behind the unrest; there is also evidence that some money is flowing to keep the demonstrations going. Fortunately, this virus did not spread to the mainland as planned by the masterminds, because otherwise there would really have been a catastrophe. Such assessments can be dismissed as narrow-minded opinions of spoiled Chinese cadres who cannot evade the brainwashing of their regime. But that would have been too simple. Many Chinese think like their colleague, who often has the opportunity to find out more in Western countries. This has a lot to do with propaganda, of course, but there are other reasons for this view.

On June 30, 2020, the National People’s Congress in Beijing passed the Hong Kong National Security Protection Law. It is directed against activities that are considered subversive, separatist, terrorist, or foreign interference. The law is not only being rejected by the pro-democracy parties in Hong Kong. Governments of Western countries also use the law to base their criticism of the Communist Party’s policies in the Hong Kong Special Administrative Zone. On September 1, a seven-person commission of experts from the United Nations sent the People’s Republic of China a communqué in which they indicated that the law could possibly constitute a violation of international law. The choice of words was made deliberately, because such a violation does not seem to have existed so far. The experts reminded China of the commitments it has made towards Hong Kong and urged it to adhere to the understanding of the terminology used in applying the law. They see a risk that this might not be the case and warn that the law should be adjusted in certain places. It appears that the PRC legal experts have been skilled enough in drafting the security law to avoid violating international law and the legal obligations China has made regarding the status of Hong Kong.

The promulgation of the law was the culmination of a long political dispute between proponents of a Western system of government in Hong Kong and the city’s leadership loyal to Beijing, which had repeatedly led to rallies. In China – as well as in large parts of the Middle East – many people cannot and do not want to imagine that protest movements of this kind arise spontaneously. Foreign powers are generally suspected of having helped if their own authority is undermined. In our country one would speak of conspiracy theories, but that does not help in treating the problem. The Security Law emphasizes under Article 4 of its first chapter that human rights should be respected and it should be ensured that all previous rights and freedoms, including freedom of speech, freedom of the press and the right to demonstrate, are protected in accordance with the law. Only chapter 3 begins to describe the four above-mentioned crimes of secession, subversion, terrorism or the collusion with a foreign country, which can be prosecuted with the help of the law. One article in each case is devoted to the offense, a second threatens to punish those who incite the offense with funds. This explains the omissions of the Chinese professor about the financial support of the demonstrations from abroad as well as the fact that the law almost principally deals with the threat to the People’s Republic of China from hostile activities in Hong Kong first and only then with the security of Hong Kong itself . This leaves the Impression that the National People’s Congress was less concerned with the situation in Hong Kong when the security law was passed, and more with the potential threat that foreign influence could pose to China from there.

China arouses emotions in the West, and not just since 1989, when tanks crushed down the  Tian’an men Square protests in the service of the Communist Party. The events marked a turning point for Chinese domestic politics and its perception in the West. At the same time, however, the violent suppression of the protests did not prevent Western delegations from standing in the queue in Beijing and Shanghai after a short break. Hard and for Western standards unusual conditions for participating in big business were gladly accepted for the hoped-for profit without much hesitation. The country would adapt to the blessings of free Western civilization once it reached a certain level of prosperity, was the opinion of leading political scientists. You first had to accept certain restrictions, even if you were sometimes surprised. Hong Kong has long benefited enormously from China’s economic boom. In terms of gross domestic product per capita, Germany, which at the beginning of the boom was still far ahead of it, has long been behind. The Communist Party allowed capitalism to grow stronger than all of Germany’s parties committed to the social market economy. The result is that Hong Kong´s citizens today are on average much richer than Germans.

However, Hong Kong’s meteoric rise has stalled since the 2008 financial crisis. Just in time for the designation of office of the new General Secretary of the Communist Party, Xi Jinping, it fell to just 1.7 percent in 2012 and has only grown in the low single-digit range after that. This is actually a normal process, but it is accompanied by unfavorable developments. The already high property prices have risen astronomically since the 1990s, so that young Hong Kong citizens with an average income are no longer able to enter the housing market. In a global comparison, they share their fate with their peers who live in similarly successful metropolises. But the fact is important because owning an apartment in the Chinese culture is often a prerequisite for a self-determined life – and a marriage. That is one of the reasons why Hong Kong has one of the lowest birth rates in the world: in 2003 it hit a low point of 0.9 children per woman. It has increased somewhat since then, but this is mainly due to the high level of immigration from the PRC. In Hong Kong, too, migrant women have higher birth rates than local people, at least for a certain period of time. Since the turn of the millennium, the population has increased by almost 800,000 to 7.51 million. This is the result of a huge influx from the mainland, without which Hong Kong would hardly be viable. Otherwise, both universities and hospitals would have to shrink or close considerably, and the water and food supply naturally also depends on the surrounding area. The influence of Mandarin, the official language of the mainland which hardly any of the Cantonese-speaking Hong Kong natives understood thirty years ago, is omnipresent. Fear of becoming strangers in their own country is growing among the few young Hong Kong natives with a long family connection to the city. That could be the case soon.

This demographic development is also part of the backdrop against which dissatisfaction with the conditions in Hong Kong first broke ground in 2014 in the so-called “umbrella protests”. Anyone wanting to understand the political motives for this has to go back to 2007, when the National People’s Congress (NPC) of the PRC announced that in 2017 the Hong Kong head of government could be elected for the first time by a general election, not by an electoral body as it has since 1997. The Hong Kong Basic Law passed by the NPC in 1990 states that the “ultimate goal is the election of the head of government by general election after nomination by a representative nomination committee in accordance with democratic procedures”. In August 2014, the NPC proposed that the electoral system in Hong Kong should be changed in order to achieve this goal now. However, he reserved the right to propose the candidates. The action sparked a wave of protests, after which the change in electoral law was withdrawn. The new procedure would not have been democratic in the western sense, but it might have been a cautious step forward. The new Prime Minister, Carry Lam, was re-elected in 2017 according to the old system that has been in place since Hong Kong was handed over to the British in 1997.

The National People’s Congress had been encouraged to make this announcement in 2007 by a rather pro-China atmosphere in the city. The Beijing-friendly parties had regularly made ground to the pro-democracy forces in the elections for the city parliament since the 1997 handover. In 1998 they won only 30% of the vote, in 2012 it was 42 percent, the Beijing-loyal “Democratic Alliance for the Improvement of Hong Kong” has always been the strongest single party anyway. In the 2007 local elections, the pro-Beijing camp even won by landslide. Its candidates conquered 15 of the 18 town halls. Interestingly, he managed to repeat this success in 2011 and even after the demonstrations in 2014: In 2015, Beijing-friendly candidates dominated all city halls for the first time.

It should be noted that voter turnout has increased from a very low level over the years. In 2007 and 2011 it was just over a million – less than 40% of the registered electoral population and well under 20% of those eligible to vote – but in 2015 it had reached just under 1.5 million voters (47%). With 7.5 million inhabitants and a potential electorate of six million people, that was of course still only about 25 percent. There are many reasons for election fatigue. On the one hand, many Hong Kongers may say to themselves that their voting will anyway have no impact on politics in the city, which is determined by status groups whose rights Beijing has comfortably secured against democracy. On the other hand, even under the rule of the motherland of European democracy in Hong Kong, there were never elections at the level of the city parliament and thus no education so that responsible citizens could influence the shaping of their community by voting. Occasional Western voices are now trying to lift the blame for this off the shoulders of Great Britain by pointing out that China would have viewed free elections in Hong Kong as an unfriendly act and therefore used its influence on the British administration to prevent them from happening. Such arguments, however, have the character of cheap excuses for embarrassing neglect with regard to reforms that are taken for granted that have not been tackled for years because it was believed that Hong Kong would function well without them. And it remains to be stated that in Hong Kong the supporters of the politics of the PRC – a state in which direct democracy only exists in very small rudiments at the lowest local level – paradoxically apparently made more use of their right to vote than the supporters of a Western shaped system of representative democracy. This shows that the Chinese can understand the advantages of representative democracy, even if the result of their voting may be different from what the West would generally imagine.

The demonstrations flared up again in the summer of 2019 when Carry Lam tried to pass a law that would allow Hong Kong to extradite criminals abroad. The occasion was a murder in which a Hong Kong man in Taiwan had killed his girlfriend but was not allowed to be extradited to Taiwan. The demonstrators, however, were certainly right to fear that the new law would also serve to extradite unpopular people to China. The withdrawal of the law in November was not enough for the protest movement; among other things, it now called for general and independent elections. The local elections, which were held in November, turned the previous situation into its opposite. With a record turnout of 71%, the number of voters doubled to 2.8 million. This means that well over half of the electorate still stayed away from the polls, and it shows that the vast majority of the Hong Kong population still doesn’t care what a small fraction of the politically conscious population is fighting over. For the first time since 1997, when Hong Kong was separated from the British colonial structures, parties critical of Beijing achieved a majority at the local level due to the increase in voter turnout. In absolute terms, however, the success was not as great as one might think at first glance: 42% of the electorate voted for the representatives of the tough Beijing policy. The contrasts in the city are not only greater than ever at the universities. Unless a miracle occurs, they are likely to grow rather than shrink in years to come. It is by no means certain which party will gain the upper hand. Due to demographic changes, the scales could soon lean in its favor, even without Beijing’s direct intervention.

Many Western observers seemed to fear a recurrence of the Tian’anmen massacre at the height of events in the summer of 2019. Correspondents who reported troop movements on the Hong Kong border and assumed that the CP would strike soon, were informed of another despite the police violence on the streets. The leadership of the PRC was in a quandary because they no longer had any options after Carry Lam had partially accepted the demands of the demonstrators, but they did not accept this as a peace offer. Claims that followed cannot be fulfilled for those familiar with the situation in China. Against the background of what could have happened, the so-called “security law”, which the PRC passed in the Corona shadow for Hong Kong in 2020, seems to be the lesser of two evils. Worse could have been imagined. But a bitter aftertaste remains. In China, local authorities were able to go to great lengths for a month to silence the pandemic with grave consequences for the rest of the world. After the pandemic put a natural end to the protests and the world’s economically leading nations were preoccupied with damage control, the PRC leadership has taken advantage of them to get rid of an unpopular movement. With regard to Hong Kong, Corona came at the right time for the Beijing leadership. On the one hand, this gives rise to fears that China could be tempted to use the moment to resolve other long-simmering conflicts such as the Taiwan question, on the other hand, it casts a shadow on the successful fight against corona that China now can boast with proud with good arguments.

One can understand the students in Hong Kong in their fear of China; Nevertheless, it would have been helpful if, after the extradition law had been withdrawn, they had been able to bring realistic proposals on the table that would have made it possible, in the medium term, to make progress in building democratic structures in Hong Kong, including at the top level of city management. But the young democracy movement in Hong Kong still lacks the necessary experience to turn a mass protest against an authoritarian state into a political success. Otherwise Hong Kong could also be an experimental laboratory for China itself. In the service of democracy, it would be important in this sense that the conflicting parties should come to a table and work towards a realistic compromise with regard to the right to vote for the head of the city, which would give both sides the opportunity to come out of the crisis while saving face. The supporters of Beijing in Hong Kong are not necessarily all enemies of representative democracy; that shows their commitment to the elections. Western politics should therefore act as a mediator rather than rushing to take one side and thus forfeit one’s own leeway on the other side.

Comment from Global Review:

  1. Detailed analysis and very apt. Only with regard to a kind of democratic compromise and a mediating role of western politics, which would probably be perceived as interference in internal affairs as always, is that very optimistic in view of the booming neo-totalitarian megatrend in China. Isn’t this the old illusion of engagement politics that there is a part of the CCP willing to reform, which, in conjunction with the growth and rise of a per se cosmopolitan, liberal middle and upper class, will help a Chinese democracy to break through if one only waits patiently? I can also remember the stories that some bankers told in the 90s: With the Shanghai gang of Jiang Zemin and Zhu Rongji, Shanghai will become the new financial center of China in addition to the return of Hong Kong in 1997, which will then open up China’s financial sector and Zhu Rongji would then succeed Jiang Zemin and Beijing would then be ruled by the Shanghai gang model, become more capitalist, more open to western capital, more liberal, more interested in the rule of law and then also more democratic, yes a gigantic Hong Kong. Especially since Jiang Zemin’s 3 representations also open the CPC to entrepreneurship. Jiang then suppressed the Democratic Party of China and the Falungong and started a Taiwan crisis. Or the hopes associated with the overthrow of Politburo candidate Bo Xilai and the election of Wang Yang to the Politburo. Bo Xilai had resurrected the Mao cult and set in motion campaign-like movements against corruption, crime and triads that were somewhat reminiscent of the Cultural Revolution, especially since he had spoken out in favor of more state influence on the economy and an emphasis on the social welfare state , which the Western business circles and politicans saw with concern. At the same time, an uprising broke out in the city of Wuhan, in which the angry people occupied the government buildings, deposed the mayor and put up their own candidate. Instead of repression, the KP cadre responsible at the time, Wang Yang, reacted with the admission of the candidate and a kind of liberal pacification. In addition, Wang Yang’s region was also economically connected to Canton and Hong Kong and, like Zhu Rongji, he called for further economic reforms and it was hoped by the West that the Wukan model could now set a precedent for the CCP and that China would now become even more capitalist, more open for western capital and liberal. Bo Xilai, his wife and supporters were put on a show trial while Wang Yang was being promoted. Under Xi Jinping, however, no political liberalization was initiated, on the contrary, a neototalitarization The moderate verdict against Joshua Wong can probably also be explained by the fact that China does not want to provide any further pretext for a further escalation in the confrontation with the USA. In the short term, the CCP might make one or two tactical concessions, but in the medium and long term, it also wants to spread its dictatorship directly to Hong Kong and has already questioned the 1 country, 2 systems principle.
  2. Dr. Sachsenröder, an academic friend of ours and interviewee from the Institute for South East Asian Studies in Singapore (ret.), who is currently working on a book and a documentary film about imperialism, opium wars and drug trafficking, made us aware of another aspect of the national security law beyond Purely political motives of the Communist Party of China: It also serves to fight crime, especially organized crime and the triads. The colonial powers of the time, their secret services and the KMT were deeply connected to the drug trade and the triads. The book The Soong Dynasty by Sterling Seagrave vividly describes the connections between the KMT and the Shanghai Triads, which then settled in Taiwan, Hong Kong and Southeast Asia after the KMT was forced out under Mao and then with the support of the US and British governments continued their business, including drug trafficking. A lot of capital and parts of the economic history of Hong Kong, Taiwan and Southeast Asia are of criminal origin behind the glittering facades. It is also significant that the CCP officially fights the triads and drug trafficking, but conversely there is also a programmatic speech by Deng Xiaoping before Hong Kong’s return in which he describes the triads as “patriotic secret societies.” Possibly the CCP fights the triads in China to the extent that they do not become a power like the Mafia in Italy on mainland China, but the CCP may also use them in part, as the KMT and the USA, GB and also France and their secret services have done for a long time. Especially since there were reports that the Communist Party of China likes to use organized crime thugs against local uprisings in China or is said to have used them against the democracy movement in Hong Kong. The security law then as a fight against and for the triads.

Prof. van Ess then wrote to us:

  1. “Yes, I admit that the ending looks optimistic. I believe, however, that the CP (or at least part of it) actually saw Hong Kong as a potential field of experimentation, because carrying the burden of power alone is quite risky in the long run. Before Corona, China’s economic development was not so positive, so that the most important pillar of legitimation for one’s own rule threatened to collapse. The possibility of providing additional security through more democratic elements (without, of course, relinquishing power) would have been an interesting option. The demonstrations in Hong Kong made this impossible. If the young people had acted at least a little bit smarter, then you could have come to a reasonable compromise. After Corona, everything looks very different anyway. Firstly, China is getting out of the crisis better than the West, so that the CP no longer has to worry so much in this regard, and secondly, was able to turn off the tap relatively quietly for the demonstrators. “
  2. ““Yes, crime is definitely a topic that is sometimes ignored here. Of course, Hong Kong itself has a functioning legal system (that’s how it appears to me). The impossibility of extraditing a murderer to Taiwan shows that there is a real problem. This could affect cross-border gang crime in southern China. Today, however, large parts of Hong Kong’s finance capital support the Beijing government because its wealth is based on cooperation. A few years ago there was the case of telephone fraudsters who from Thailand had cheated many people in China and their savings . They were simply brought to China with a special campaign from Thailand with general applause. It would certainly not have been easy to do that from Hong Kong. However, there are the spectacular cases of kidnapped booksellers who were brought to justice in China for tarnishing Xi Jinping’s reputation. It was probably actually yellow press, but the procedure was and remains problematic. “
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