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The new Hong Kong- Antony Dapiran


Dear friends,

HOT DEAL: At the time of hitting “Send”, my book City on Fire is ON SALE for only US$2.99 in the Amazon US Kindle store. If you are a Kindle reader, don’t miss this opportunity to grab the Kindle version at a bargain-basement price. (And don’t forget: as a verified purchaser, your review carries more weight!)

In this edition: reflections on Hong Kong’s new National Security Law; and some nourishment and consolation.

Hong Kong: National Security Law

We all knew it would be bad.

We were expecting four new, vaguely defined, criminal offences, with Beijing having final right of interpretation, overruling Hong Kong’s courts. We were expecting Mainland state security agents to be permitted to operate, with impunity, in Hong Kong. We were expecting — as I wrote in the previous edition of this newsletter — “a deep intrusion by Beijing into the fundamental governance and legal structure of Hong Kong.”

What we were not expecting was for our city to change fundamentally overnight.

For my quick overview of and reaction to the National Security Law a few days after the law came into force, you can listen to my chat with Julian Morrow on ABC Radio National (12 minutes; recorded 5 July).

Here I want to focus on four key areas where the National Security Law is having an impact:

1. Freedom of speech.

2. Rule of law. [With a bonus technical note for Hong Kong lawyers!]

3. Opposition politicians.

4. Hong Kong’s geopolitical position.

1. Freedom of speech: Deep freeze

Prior to the law being revealed, Hong Kong Chief Executive Carrie Lam and other government spokespeople had sought to reassure the world that the National Security Law would target only a “very small minority” of extremists, and that fundamental freedoms would be maintained.

Those claims quickly unravelled on the morning of 1 July, the day after the law was enacted, when Hong Kong Police unfurled their new purple warning banners at a protest: 

File photo

When I first saw pictures of that banner I thought it must be satire. Displaying flags? Chanting slogans? Surely this was some kind of joke.

When the arrests began shortly afterwards, the horror of Hong Kong’s new reality dawned.

And if there were any doubt, the Police made it very clear:

Credit: Police Force Twitter screenshot

This is the new Hong Kong: where people have been arrested for wearing t-shirts or possessing flags with political slogans; where public libraries are pulling books from shelves; where police demand pro-democracy restaurants remove Lennon Walls bearing protest slogans; where the government has declared that the protest slogan 光復香港,時代革命! (“Liberate Hong Kong, Revolution of our Times!”) is illegal.

The Economist has called it “one of the biggest assaults on a liberal society since the second world war” — and it is hard to disagree.

For my commentary on this overnight change in rights and freedoms in Hong Kong, I have two audio-visual offerings for you:

I spoke to the ABC’s The Signal podcast about the loss of rights and freedoms, and its impact on the city. You can listen to that segment here (17 minutes; recorded 12 July).

I joined a panel at the Foreign Correspondents’ Club, alongside University of Hong Kong’s Keith Richburg and Sharron Fast, and moderated by FCC President Jodi Schneider, to discuss the impact of the national security law on press freedom in Hong Kong. You can watch our discussion here:

2. Rule of law: HK is becoming a pariah in the common law world

Previous instalments of this newsletter have mentioned the impact of the National Security Law on Hong Kong’s rule of law.

A few days after the law came into force, I spoke about the legal implications on RTHK’s Backchat with host Hugh Chiverton and legal scholar Danny Gittings (Danny wrote the book on the Basic Law). You can listen to that conversation here (starting at around the 11 minute mark, duration ~18 minutes, recorded 3 July).

As I reflected further on how the National Security Law undermined Hong Kong’s rule of law, I concluded that it must inevitably also harm Hong Kong’s standing as an international legal centre. Previously, international and Chinese contracting parties readily adopted Hong Kong law and courts as a compromise jurisdiction. I think that is now going to change.

I argued just that in my recent article about the prospects for Hong Kong as an international legal centre in this piece for Bloomberg Opinion.

Technical Aside for Hong Kong lawyers

My more specific, technical, point (edited out of my Bloomberg Opinion piece for concision) was that international law firms in Hong Kong should now consider qualifying their legal opinions to carve-out any Mainland laws forming a part of Hong Kong law by virtue of inclusion in Annex III of the Basic Law (including the National Security Law). This is Mainland law — and despite the heroic efforts of people like HKU Professor Simon Young who argue we can still work with it as Hong Kong law — the reality is that no Hong Kong lawyer can interpret or opine on it with any confidence, especially when Beijing reserves the final say.

Even Hong Kong’s SFC, in an unusual statement over the weekend seeking to reassure financial institutions who had expressed concerns over issues such as research and short selling (which have been targeted by Mainland regulators on national security grounds in the past), couched this reassurance in qualified terms. The SFC said only that they are “not aware of any aspect” of the National Security Law which would affect the financial market information regime in Hong Kong and that existing practices “should” remain unaltered. If clients push back against an opinion qualification, perhaps Hong Kong law firms can qualify their National Security Law opinions with “awareness”, pointing to the SFC as justification.

If even the regulator can’t make an unqualified statement on the law, what hope for the rest of us?

The national security law — and Beijing and the Hong Kong government’s cavalier approach to its impact on rule of law — is fast making Hong Kong a pariah in the common law world.

At the time I wrote the Bloomberg piece, Canada had already suspended its extradition agreement with Hong Kong. Australia and the US followed soon afterwards, and it looks like the UK will announce the same move on Monday.

In my Bloomberg article, I also raised the question of whether the overseas non-permanent judges — leading jurists from the House of Lords and former chief justices of Australia’s High Court, among others — could in good conscience continue sitting on Hong Kong’s Court of Final Appeal.

My mate Tom Clarke (erstwhile Hong Kong solicitor and now Victorian barrister) kicked things off with a punchy letter to the Australian Financial Review a few weeks ago:

David Neuberger, president of the Supreme Court of the UK, likened the overseas “non-permanent” judges who sat on Hong Kong’s Court of Final Appeal to canaries in the coal mine… [T]he time has come for the non-permanent judges to get off the perch… With the abrupt foreshortening of the “One Country, Two Systems” constitutional framework, there is no longer any place for [overseas] judges to serve as ornamental canaries. Confucius summed up the dilemma exactly: “A gentleman is not a utensil.” [君子不器]

The Times of London followed Tom’s lead with an editorial a few days later, and finally, the President of the UK Supreme Court, The Right Hon Lord Reed, issued an unprecedented shot across the bows on Friday:

“Whether judges of the Supreme Court can continue to serve as judges in Hong Kong will depend on whether such service remains compatible with judicial independence and the rule of law.”

(There has also been some pressure on Canada’s Beverley McLachlin to step down.)

If political tensions continue to escalate, I suspect we may end up with all 5 Eyes-affiliated non-permanent judges resigning (currently, UK, Australian and Canadian judges are sitting), to be replaced by judges from other common law jurisdictions such as South Africa, the Caribbean nations, and Singapore. This will retain the fig-leaf of foreign judges sitting on Hong Kong’s highest court while removing the substance.

And for all those who cry out, “But won’t Hong Kong just be like Singapore?”: even if you want to take Singapore as some kind of acceptable yardstick for human rights and rule of law (another debate entirely), Singapore is not an appropriate comparison for many reasons, not least because it is not subject to arbitrary intervention by the CCP. Hong Kong is not “becoming Singapore”; Hong Kong is China.

3. Opposition politicians: The rules of the game have changed

In my 13th Procrastination, I observed that with the National Security Law, “Beijing’s aim appears to be to break the spirit of the pro-democracy movement once and for all,” and quoted a mainland expert who told the Global Times that “the central government’s determination would also change the psychological expectations of pan-democratic groups.”

When the text of the law was finally revealed, this intention became clear: many of the traditional activities of the pan-democrats could now constitute criminal subversion under the new law.

I wrote in this recent piece for Inside Story about the impact of the National Security Law on Hong Kong’s pro-democracy politicians:

“The national security law rewrites the rules of the game for the pan-democrats, fundamentally challenging how they campaign and how they behave in office… In their opposition role, the pan-democrats have traditionally organised and engaged in protest actions, both on the streets and inside the legislative chamber, including filibustering and other procedural tactics… [These] would now place the pan-democrats at risk of prosecution under the new national security law…”

Last weekend, the Hong Kong pan-democrat parties held primary elections to decide who among them would contest September’s LegCo elections. The aim was to improve their electoral prospects by coordinating the fractured pan-democrat factions and avoid them cannibalising each others’ votes. Their “stretch” goal is to win a majority of seats in LegCo in September.

And if we needed any further evidence that the National Security Law would be weaponised to target the pan-democrats, we did not need to wait long. First, the Secretary for Mainland and Constitutional Affairs, Erick Tsang, announced that the primaries might violate the National Security Law. After the event, Carrie Lam repeated the accusation that the primaries could amount to “subversion” under the law, and said an investigation would be carried out. Finally, Beijing’s Central Government Liaison Office issued a furious statement, calling the primaries “illegal” blasting organiser Benny Tai, and insinuating that malign “foreign forces” were trying to manipulate the elections.

It appears the main subject of their ire is the pan-democrats having the temerity to actually try to win an election. Under Beijing’s understanding of how elections work, this is not allowed:

“Beijing will not just sit back and let candidates from the opposition win over half of the seats in Hong Kong's legislature, said a senior advisor to Beijing on matters with the special administrative region.”

It seems entirely possible that — consistent with their Lawfare campaign of recent years — Beijing and the Hong Kong authorities will use these “illegal” primaries as a basis for mass disqualification and even arrest of any pan-democrat politicians involved in the primary. To cause maximum damage, that would be done after the nomination period for the election has closed, and this possibility may force candidates selected through the primary process also to nominate “backup” candidates who would campaign in their place in the event of their arrest. Watch this space.

In the end, 600,000 people voted in the primaries, in spite of virus fears, threats from the government and police intimidation (the night before the vote, police raided the headquarters of the Hong Kong Public Opinion Research Institute, which had provided the technology platform for the poll). Consider it a virtual, distributed 600,000-person protest march against the national security law.

4. Geopolitics: Hong Kong is at the front lines of a growing global conflict

At the end of last year, I wrote in City on Fire:

“If the 2019 protests had a global significance, it was that they served to reveal the face of Chinese [Communist Party] power to the world. The Hong Kong protesters, in their yellow hard hats and black shirts, battling with police in clouds of tear gas on the Hong Kong streets, became a potent visual symbol of state violence… In the process, the Hong Kong protesters awoke the world to the scale and impact of [CCP] influence globally.” (page 171 for those of you following along at home)

The recent crackdown on Hong Kong, and the brazen overreach of the National Security Law, has only served to intensify that awareness, and appears to have hardened Western positions against China.

After President Trump issued his Executive Order on Hong Kong Normalization, which not only overhauled the US-Hong Kong trade relationship, but also set the stage for wide-ranging sanctions against PRC and Hong Kong leaders — and financial institutions transacting with them — I told Bloomberg’s Iain Marlow:

“The US measures, alongside Beijing’s own crackdown on Hong Kong, are fast turning the city from an open, stable international financial centre into contested ground at the very front lines of a rapidly intensifying geopolitical conflict.”

Alongside financial institutions, the other companies likely to find themselves struck in the middle of this conflict are global technology companies. Several prominent US tech companies have already announced that they will not comply with Hong Kong government requests under the National Security Law. If and when those requests eventually come, they will face a difficult decision, as I explained when I spoke to CNBC a few weeks ago:

Nourishment and Consolation

One of the things I love about living in Asia is wandering the streets of my favourite Asian metropolises at night. Tokyo-based photographer Cody Ellingham produces beautiful nocturnal photography of Asian cities for his Derive project. Ellingham recently teamed up with sound artist SJF to produce a new website: Wander the Night. The site combines Ellinghan’s lush nighttime photographs of Hong Kong, Shanghai, Bangkok, Taipei and Tokyo, with haunting soundscapes composed by SJF. Put on your headphones, toggle rain on or off to taste, and be absorbed.

Reading: Max Porter’s second book Lanny. Like Porter’s debut, Grief Is The Thing With Feathers, Lanny eschews conventional narrative, instead unravelling its story across a collage of fragments and first person monologues, drifting somewhere between prose and poetry. Lanny shares much with one of my other favourite reads of recent years, Jon McGregor's Reservoir 13, not only due to the shared plot device of a missing child, but also in its dialogism — an entire English village brought to life through the many voices of its residents in glorious polyphony — as well as its deep connection to nature. But to Lanny Porter adds, as he did in Grief, elements of the mythical and magical into the mix. Highly recommended.

And finally…

I spent a pleasant evening a few weeks ago joining a book club discussion of City on Fire with some astute and discerning readers here in Hong Kong. If any of you would like me to join your own (virtual) book clubs to discuss City on Fire, please contact me and I’ll happily try to accommodate.

This has been A Procrastination. Thanks for reading.

Antony


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