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Rule of law (in respect of national security) is dead in HK: Antony Dapiran


Dear friends,

In this edition: more details about the national security law have been revealed, and it doesn't look good; follow-up on the June 4th Vigil; out & about; and some nourishment & consolation.

Hong Kong News

National Security Law

Beijing's proposed National Security Law for Hong Kong continues to cast a dark shadow over the city.

We learned new details about the law in recent days, after Xinhua released an explanation of the law by a spokesperson for the drafting committee (Xinhua commentary here; translation by China Law Translate here).

The full draft law has still not been released, prompting some speculation that there is still disagreement among the leadership as to the details. However, the NPC Standing Committee has called an extraordinary session for June 28 through 30 at which the law may be passed.

Chief executive Carrie Lam denied judicial independence will be affected under national security legislation. AP Photo

So what have we learnt about the law from the Xinhua explanation?

Firstly, we are still none the wiser as to the exact definition of the four new national security offences — secession, subversion, terrorism and colluding with foreign forces — created under the law, nor what the penalties will be.

However, what is now apparent is that the law does much more than just create four new criminal offences. It is a deep intrusion by Beijing into the fundamental governance and legal structure of Hong Kong.

In particular, the law remakes whole sections of the Hong Kong government, by:

  • setting up a new Hong Kong government agency, the Commission for Safeguarding National Security (維護國家安全委員會), which will comprise the chief executive, key ministers and representatives from the uniformed services;
  • inserting a Beijing-appointed commissar into the ranks of a Hong Kong government agency: Beijing will appoint a "national security advisor" to Hong Kong's Commission for Safeguarding National Security;
  • creating a new special prosecutor's office for national security offences in the Department of Justice;
  • creating a new department for national security in the Hong Kong Police Force (described by former Chief Executive CY Leung as akin to the notorious Colonial-era "special branch", and which Secretary for Security John Lee has said will operate in secret — because having the words "secret" and "police" in the same sentence is always reassuring!).

Just to be clear: these are Hong Kong government organs for which, under the principles of "One Country, Two Systems", Hong Kong should be solely responsible. There is no legal basis for Beijing to be remaking chunks of the Hong Kong government.

The law also intervenes in other key aspects of Hong Kong governance and society, including:

  • the legislature: the law will require LegCo to "complete legislation on preserving national security as provided in the Basic Law…as soon as possible, and improve relevant laws", directly undermining the autonomy of Hong Kong's legislature (although it is unclear what mechanism could possibly enforce this legal requirement);
  • the electoral system: requiring candidates for elections to sign declarations swearing to uphold the basic law and loyalty to the Hong Kong SAR of the PRC (creating a new legal requirement for Hong Kong elections, again outside the scope of Beijing's proper authority);
  • the education system and civil society: requiring the Hong Kong government to "strengthen the oversight and management of schools, social organizations, and other matters related to national security".

Overall, the law marks a broad-based power-grab by Beijing over key elements of Hong Kong government, law, and society.

Most alarmingly, it will seriously undermine Hong Kong's rule of law:

  • the law undermines the judiciary, with the Chief Executive empowered to hand-pick judges (including “special” or “temporary” judges from outside the formal ranks of the judiciary) to hear national security cases, an arrangement that destroys judicial independence and the separation of powers;
  • the law removes the power of final adjudication from Hong Kong courts: a “very small category” of national security cases will be subject to trial in the Mainland (introducing the very extradition arrangements that people feared when they protested the extradition law last year).
  • in the case of any discrepancies between the National Security Law and any Hong Kong law (including, for example, the Bill of Rights Ordinance), the Mainland law overrules Hong Kong law.
  • the power to interpret the law is taken out of the hands of Hong Kong courts: that power is vested in Beijing.

The National Security Law opens up a gaping hole in Hong Kong's rule of law: it is not an exaggeration to say that, in respect of national security matters (which is defined however Beijing wants it to be defined), rule of law is dead in Hong Kong.

Johannes Chan, former dean of HKU law school, sums up the situation well, writing:

In order to protect the common law system in Hong Kong, the design of the Basic Law is that Hong Kong will enact its own law, that Mainland law will not apply and the Central Government would not make law for Hong Kong, and that Hong Kong law will be enforced by the Hong Kong law enforcement agencies, and administered by the Hong Kong judiciary. These are the pillars that protect the common law system, and all these pillars are now shattered.

Renowned China law expert Jerome Cohen put it much more bluntly:

The Handover has clearly become the Takeover.

Vigil Redux

You may recall in my previous Procrastination we reported on the June 4th Vigil, which occurred in defiance of the government's ban.

It was an entirely peaceful night, an island of (candle)light amidst an otherwise very dark time in Hong Kong — and one the authorities moved swiftly to crush.

A week later, Lee Cheuk-yan and other the leaders of the Hong Kong Alliance in Support of Patriotic Democratic Movements in China were arrested and charged with inciting others to join an illegal assembly. Pro-democracy media tycoon Jimmy Lai was reportedly also charged.

But what else should we expect when the Chief Executive says that any critics of the regime are "enemies of the people"?

Out & About

Today is US publication day for my book City on Fire: The Fight for Hong Kong. For readers in the US, you can now order physical copies for delivery in the US from online retailers, and hopefully can find the book in good US book stores as well.

(If you are looking for the book in Hong Kong, there were plenty of copies in the Pacific Place branch of Kelly & Walsh last I checked, and you can also find it at the charming Bleak House Books, as well as — for FCC members — at the concierge desk of the FCC.)

To mark the book's publication in the US, Ninth Letter (the literary journal of the University of Illinois, Urbana-Champaign) has run an excerpt from the book, the Prologue "City of Tears", being a disquisition on the uses and abuses of tear gas. The piece is illustrated with gorgeous watercolours by Hong Kong artist Fung Kin Fan, as well as some of my own photos from the streets.

The piece has gained added resonance, in particular for readers in the US given recent events, as Ninth Letter editor-at-large Philip Graham notes in his introduction to the excerpt:

For readers here in the U.S. the accompanying images—in photos and art—of protesting crowds, brutal police tactics, masks, and clouds of tear gas are eerily familiar, as if Hong Kong roils not on the other side of the globe, but right across the street.

The books has also received some more very kind reviews recently:

  • Sue-Lin Wong reviewed my book for the Financial Times, writing that the book: "combines relentless on-the-ground reporting with a deep understanding of the city's political, economic and social undercurrents... Dapiran's style is energetic and vivid, transporting the reader to the middle of a riot police baton charge or a panicked, tear-gassed crowd."
  • Meanwhile, Hong Kong cultural studies scholar Garfield Chow writing for Cha called it: "one of the year's most crucial reads, not just because of its timeliness, but also its analysis of the historical and cultural significance of the act of dissent".

Last week I spoke to Jordan Schneider for the podcast that accompanies his China Talk newsletter. Our conversation covered a lot of ground, from the Umbrella Movement of 2014 through last year's protests and up to the present moment in Hong Kong. You can listen to our conversation here (1 hour 17 mins).

I also had a slot on CNBC (and yes, there is some subtle product placement going on there).

Last night I (along with Professor Kerry Brown of King's College London) had the pleasure of chatting about the latest from Hong Kong with Australian national living treasure Philip Adams on Radio National's Late Night Live (18 mins).

Erin Handley of Australia's ABC News included me in her article profiling six different people engaged in the protest movement: "Hong Kong's activists and artists reflect on the past year of protest".

And I am pleased to report that my Procrastinations are now being re-posted by Hong Kong independent news outlet CitizenNews in their English-language Tri-Angles section, thanks to the support of Alvin Lum (one of Hong Kong's finest politics reporters, Alvin recently left the SCMP to join CitizenNews).

Nourishment & Consolation

Firstly, an apology: unbeknownst to me, just hours after I sent out the last instalment of this newsletter, the "May 35th" YouTube livestream I had recommended was taken down by the producers. Sorry for any resulting disappointment.

This week, more quality free content which I hope will continue to be available after this goes out: Trent Reznor and Atticus Ross are not only the keystones of the band Nine Inch Nails but are also the duo behind some of the most innovative movie soundtracks of recent years (most notably, their Oscar-winning soundtrack for The Social Network). As their COVID Project, Reznor & Ross, working as Nine Inch Nails, have released the latest instalments of their "Ghosts" project: Ghosts V and VI. Their Ghosts work is instrumental, experimental and improvised, and shares the aesthetic of their film soundtracks (plenty of drones!) rather than the classic industrial rock sound of NIN: indeed you could think of Ghosts as soundtracks for non-existent films. Ghosts V and VI are available for free download from the NIN website now. If this sounds like your thing, download it while it’s available: Ghosts I-IV was similarly available a few years ago but subsequently — like a ghost? — disappeared.

Readers may also be interested in Ai Weiwei's "Mask" project. Weiwei has created artworks out of face masks, which are available for sale exclusively on eBay with all proceeds going to charity to benefit Covid-19 humanitarian and human right emergency efforts led by Human Rights Watch, Refugees International and MSF. 撐!

And finally…

This past week marked the anniversary of the "Two Million Person March" against the extradition bill on 16 June last year. Below is my favourite of the photos I took that day: partly because of the spirit of joy, defiance and solidarity it captures, partly because it foreshadows the key role that young women would play at the front lines of the movement, and also because — looking at the photo again in the days after I took it — I realised it had unconscious echoes with a historic photo from another youth protest movement in China (also below).

This has been A Procrastination. Thanks for reading.

Antony

(June 2019)
June 1989, via the Gate of Heavenly Peace documentary

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