Can We Finally Admit That “One Country, Two Systems” Is Dead in Hong Kong?

Things in Hong Kong were supposed to be different. After the People’s Republic of China (PRC) assumed sovereignty over the former British colony, the territory was supposed to be governed under the doctrine of “One Country, Two Systems.” Under the Sino-British Joint Declaration and the Basic Law (post-1997 Hong Kong’s quasi-constitutional document), the territory was supposed to enjoy a “high degree of autonomy” except in foreign affairs and defense. Its residents were ostensibly guaranteed civil and political rights, by virtue of both the Basic Law and the International Covenant on Civil and Political Rights.

These promises now lie in tatters. Last week, in the span of five days in the midst of the coronavirus pandemic, the PRC government in Beijing threatened to disqualify a sitting legislator from office for filibustering, demanded the enactment of controversial national security legislation, and declared that its Hong Kong and Macau Affairs Office (HKMAO) and Liaison Office in Hong Kong were not bound by Article 22 of the Basic Law, which prohibits “departments of the Central People’s Government” from interfering in matters within the scope of the territory’s autonomy. Meanwhile, police arrested 15 prominent pro-democracy politicians and activists, including “father of democracy” and Queen’s Counsel Martin Lee, barrister and former legislator Margaret Ng, labor organizer Lee Cheuk-yan, and newspaper tycoon Jimmy Lai.

On first observation, the decay of Hong Kong’s autonomy has been abrupt. Conventional wisdom among American analysts and policymakers has been that — until last year’s protests against a widely reviled extradition bill — the governance doctrine of “One Country, Two Systems” was largely intact. And the pandemic might seem to provide justification for a sudden shift. Yet the events of the past week were long in the making. They reflect three interrelated and long-running developments: the Beijing and Hong Kong governments’ abuse of “advocating independence” as a political and legal cudgel; the growing role of the Liaison Office; and the political capture of a previously professionalized civil service apparatus. Even so, China analysts and policymakers outside Hong Kong have largely ignored these developments until relatively recently.

“Advocating Independence”: An Invented Enemy

Beijing has long been keen to portray Hong Kong’s political opposition as seeking independence for the territory — a theme repeated over the past week. Writing in the South China Morning Post, Xie Feng (the Hong Kong-based commissioner of the PRC’s Foreign Ministry) accused opponents of national security legislation of engaging in “a bid to turn Hong Kong into an independent or semi-independent political entity.”

There is no merit to this accusation. The idea that Hong Kong should become a separate nation-state has never been part of mainstream political discussion; prior to Leung’s policy address, no political party in Hong Kong had advocated it. Even the Umbrella Movement — itself the product of frustration with existing pro-democracy parties — was a demand for democratic elections held within the framework of the Basic Law. Instead, the supposed threat of “advocating independence” has largely been of the Hong Kong and Beijing governments’ own making.

Prior to the Umbrella Movement, state-owned media outlets would occasionally accuse pro-democracy politicians in Hong Kong of subverting the Beijing government — a charge Beijing has also leveled against activists championing the causes of Taiwan, Tibet, and Xinjiang. After the Umbrella Movement, however, the Hong Kong government itself also began accusing the opposition of promoting independence. In his policy address of January 2015, mere weeks after the conclusion of the Umbrella Movement, then-Chief Executive C.Y. Leung accused the Hong Kong University Student Union of “putting forward fallacies” on self-determination and “advocating independence.”

If Leung had intended to invent a political enemy by targeting “pro-independence” groups in his policy address, he evidently succeeded. Prior to 2015 the “localist” political movement — parts of which added an overtly nativist, xenophobic gloss to an agenda focused on preserving a distinct Hong Kong identity — had, at best, been marginal. By the end of that year, as a direct result of Leung’s attacks, they had become a political force to be reckoned with. In February 2016 a localist protest against the Hong Kong government’s clearance of street food vendors in Mong Kok district turned violent; true to form, then-Liaison Office chief Zhang Xiaoming branded the protesters “radical separatists.”

Having conjured up an enemy from thin air and given it life, the Hong Kong and Beijing governments have repeatedly used “advocating independence” as a pretext for circumscribing civil and political rights. A frequent refrain from Hong Kong and Beijing officials has been that the mere suggestion of independence violates the Basic Law, and is — for that reason alone — not protected by the freedom of expression. To date, no official has explained why an act that is inconsistent with the Basic Law in this way can be suppressed in the absence of any violence or threats of violence — a line of reasoning that would prohibit any advocacy for any changes to the Basic Law. Yet this reasoning has underpinned at least one rejection of a request to register a political party as a limited company, an outright ban of the pro-independence Hong Kong National Party, and declarations that seven activists were not eligible to run for the Legislative Council. (Other pre-emptive disqualifications followed, including a decree that Umbrella Movement leader Joshua Wong could not run for District Council.) As I argued in 2017, Beijing’s strategy has been to invoke “national security” as a pretext for creating a dual state — a jurisdiction in which a “prerogative state,” subject to no legal restraints, can override the day-to-day legal and administrative rules of the “normative state” at any time — in Hong Kong. Against that background, Beijing’s renewed demands for national security legislation should come as no surprise.

The Incredible Growing Liaison Office

Shocking as it is, the Liaison Office’s claim that it is not bound by Basic Law Article 22, which prohibits departments of the PRC government from interfering in matters within the scope of Hong Kong’s autonomy, is also the logical conclusion of a lengthy process. The Liaison Office began life as the Hong Kong branch of the state-run Xinhua News Agency, before assuming its current name in 2000. Speaking on the occasion of the renaming, then-chief Jiang Enzhu emphasized that “there is no subordinate relations between the HKSAR government and the office,” and that the Liaison Office was bound by the Basic Law.

This restraint would not last. In a 2008 article in a publication run by the Central Party School, Cao Erbao, then head of the Liaison Office’s Research Department, suggested that the Liaison Office was a “second governance team,” but paid lip service to the notion that it should not interfere with matters within Hong Kong’s autonomy. Even before recent events, including the claim that the Liaison is not bound by Article 22 after all, the idea that it was bound was honored mainly in the breach. The Liaison Office stands accused of threatening Hong Kong media bosses, lobbying the territory’s legislators on matters of domestic policy, and campaigning for then-Chief Executive candidate C.Y. Leung. Cao himself allegedly sought to suppress a legislative investigation into Mr. Leung’s involvement in a public works project. By August 2014, then-Liaison Office Chief Zhang Xiaoming was so confident in his office’s power that he informed pro-democracy politicians, “The fact that you are allowed to stay alive, already shows the country’s inclusiveness.”

Political Capture of the Civil Service

The Liaison Office’s accumulation of power has been accompanied by the weakening and political capture of Hong Kong’s civil service. The Hong Kong government’s own responses to the Liaison Office’s latest assertions of power epitomize this feebleness. In an initial statement issued on Saturday, April 18 — vetted by the Constitutional and Mainland Affairs Bureau and the Department of Justice — the government asserted that the Liaison Office was indeed bound by Article 22. By the following morning that statement had been revised — twice — with the final statement confirming the Liaison Office’s position that it was not bound by that article.

This flip-flopping is merely the most recent and prominent example of the rot in Hong Kong’s civil service. Consider, for instance, the role of the Hong Kong Police Force. The 2019 protests severely dented public confidence in the police, due to widespread accounts of police brutality and the perception that officers will not be held to account. Yet — even before the Umbrella Movement of 2014 — police had been increasingly hostile to peaceful demonstrators and to the press. Then-Commissioner of Police Andy Tsang drew widespread derision in 2011 for his evasive response to allegations that a police officer had deliberately obstructed a TV news crew. By 2018, police were imposing increasingly onerous conditions on protest organizers, in an abuse of the permit system imposed by the Public Order Ordinance.

Nor has the rot been confined to the police. As noted earlier, returning officers are now disqualifying activists from running for office on overtly political grounds. Prosecutorial discretion — ostensibly to be exercised independently by the Secretary for Justice — has become so overwhelmingly exercised against pro-democracy demonstrators that prosecutors complained in an open letter last year. And decisions ranging from whether to allow a company to register to what merchandise can be sold at Lunar New Year’s markets are increasingly being made in ways that — by design — systematically disadvantage the political opposition.

Conclusion

Beijing’s latest crackdown in Hong Kong is a dramatic escalation. But it would be misleading to assert that it is merely the result of pandemic-related opportunism. On the contrary, it represents the fruition of several gradual processes in which Hong Kong’s autonomy was undercut. Each of these processes has been visible in Hong Kong’s political landscape for years — in some cases, they predated even the Umbrella Movement. Yet, until the protests of 2019, mainstream consensus on Hong Kong among outside analysts was that there was little cause for concern.

This obliviousness presents a clear parallel with the COVID-19 pandemic. Reports suggest that the PRC and U.S. governments both chose to ignore early warning signs; as of this writing, the delay has resulted in tens of thousands of needless deaths. As with the pandemic, policymakers chose to ignore — for years, if not decades — the warning signs emanating from Hong Kong; it has taken the recent arrests for them to take seriously the prospect that the territory’s autonomy is in mortal peril.

If one lesson can be drawn from both calamities, it is that PRC’s domestic conduct has global consequences. Regardless of where the novel coronavirus originated, it is clear that prevarication and the suppression of whistleblowers by PRC authorities materially contributed to the current global pandemic. In a similar vein, PRC authorities’ undermining of Hong Kong’s autonomy had been visible for years, but dismissed outside the territory by mainstream China analysts. Although both events are now prompting a long-overdue reevaluation of policies toward the PRC, that reevaluation has come at a terrible human cost.

Image: Police wearing face masks secure an area during a protest at the International Finance Center shopping mall on April 28, 2020 in Hong Kong, China. (Photo by Anthony Kwan/Getty Images).

 

About the Author(s)

Alvin Y.H. Cheung

J.S.D. Candidate at New York University School of Law. Non-Resident Affiliated Scholar at NYU's U.S.-Asia Law Institute. Follow him on Twitter (@ayhcheung).