JPRI Critique Vol. 27 No. 2 (January 2021)
Two Worlds Collide: Common Law Norms in the Service of a National Security Regime
by Suzanne Pepper
Enforcing Hong Kong’s new National Security Law may not be so easy after all. On the face of it, political life here has been turned upside down in just six months. The new law was promulgated by the central government in Beijing on June 30 last year. But trying to enlist Hong Kong’s existing common law legal system in the service of the political order being created by the new law is proving easier said than done.
The new law targets the crimes of secession from China; subverting state power; terrorism, meaning violence in pursuit of political aims; and colluding with foreigners as a form of political protest.
The list of crimes seems reasonable enough. Most countries have laws that criminalize such acts. But Hong Kong’s new law has created the very clash of political and legal cultures that many feared when the “one-country, two-systems” idea was adopted as Hong Kong’s governing principle. The new construct was intended to ease Hong Kong’s transition across the 1997 divide – from British colonial rule to that of a very different Communist Party-led sovereign.
The new design did initially fulfill its purpose. Hong Kong’s 1997 transition went smoothly, but in recent years Beijing’s current leaders have begun defining “two-systems” more strictly than before. And the new law seems to have more in common with China’s ancient draconian codes of justice than with today’s liberal democratic norms.
Under National Security Rule: Progress to Date
Beijing officials are in command. Hong Kong is defenseless, its leaders dare not disobey, and the promises of 1997 are in tatters. Hong Kong’s democracy movement has been decimated and prospects for a return to any semblance of its pre-June 30 political life are dim to non-existent.
All the leading pro-democracy candidates have been disqualified from contesting the next Legislative Council election via retroactive application of the new national security standards — even if the law itself is not retroactive. Official planning also anticipates structural changes in the council itself that will reinforce its current convoluted designs and further restrict democrats’ ability to win seats in future elections. 
Teachers are being retroactively investigated in search of those who might have previously violated the new standards. Leading activist Benny Tai Yiu-ting has lost his job as a law professor at the University of Hong Kong, following the same retroactive application of the new national security standards.
Jimmy Lai, owner of the one remaining anti-communist newspaper and media organization, is paraded in chains moving between court and prison. Initially granted bail, the Secretary for Justice, Teresa Cheng protested on grounds he was a flight risk. He has the motive and the means, declared former Chief Executive Leung Chun-ying on his blog site.
The judge who approved Lai’s bail application was subjected to a media blitz led by the official People’s Daily in Beijing. The judge felt obliged to issue a public statement that detailed his reasoning. In short order the bail case was taken up by Hong Kong’s highest Court of Final Appeal where a three-judge panel reconsidered. The panel included Hong Kong’s Chief Justice Geoffrey Ma. Lai was returned to prison forthwith. He is being held on multiple counts. Most serious is the new national security crime of colluding with foreign forces in opposition to the current political order.
Young activists with the most promising political futures before June 30, are seeking safety overseas. Others have been given stiff prison sentences administered in such a way as to publicly humiliate as well as to punish. The police seem to be willing accomplices in all respects. 
The Courts, the Judges, and the Law
Yet still the authorities are not satisfied. In pursuit of their objectives, they want to avoid the “go directly to prison” approach. The route must be legitimized, and justice must be seen to be done. But the new security regime’s officials are frustrated by the complexity that stands in their way –an obstacle that is proving difficult to surmount or circumvent.
They complain that the British common law system inherited from pre-1997 colonial days is not disinterested and does not administer justice independently, as its proud boast claims. The judiciary has a built-in political bias, say the new guardians. Why else would its rulings always seem to tilt in one direction, rather than another? Within the range of decisions and punishments permitted in any given case, the judges seem too inclined to prefer leniency. Justice tempered with mercy, but why be merciful when something as grave as national security is at stake?
Although no one understood the full implications at the time, Beijing was drafting the new law last spring when the “preparing public opinion” phase began. It entailed yet another revival of the “division-of-powers” debate. Hong Kong democrats have been struggling to keep the pre-1997 concept alive against constant reminders from their opponents that the separation of powers – executive, legislative, and judicial – cannot exist here. This is because all such powers as are exercised in post-1997 Hong Kong, derive from a single issuing authority, namely, the central government in Beijing. 
The controversy last spring ended inconclusively as usual but has now revived in the pro-Bejing media as headlines proclaim the new campaign’s tagline: “The judiciary must reform! “ 
Retired top judge Henry Litton has lent his voice to this cause, although he has yet to clarify whether he and the official critics are talking about the same thing. They are talking about in-built political bias.
He seems to be more concerned about the negative effect of British style mannerisms and conventions, the extensive use of precedents set in other common-law jurisdictions, too many judicial reviews, elaborate explanations, and deferential courtesies — all well beyond the ability of ordinary Hong Kongers to comprehend. 
So far no one has mentioned the old-fashioned wigs that are still mandatory in Hong Kong courtrooms.  But perhaps Litton believes that if the external manifestations of the inherited system can be dispensed with, the core of Hong Kong’s common law legal system will be spared.
In any case, he continues to assert that his chief aim is to rescue the common law system from oblivion because he assumes that Beijing aims to abolish it altogether come 2047. That’s when the 50-year shelf life of the “one-country, two-systems” construct is due to expire, according to the promises Beijing made before 1997. But the officials, for their part, are not just talking about mannerisms and courtly conventions.
Hong Kong’s representative on the National People’s Congress Standing Committee has authored a New Year message published in the latest issue of Bauhinia Magazine. In it he spells out all that is expected. The NPCSC is the central government’s issuing authority for all the recent decisions that are redefining Hong Kong’s status.
Tam Yiu-chung is a long-time pro-Beijing loyalist and for many years headed Hong Kong’s largest political party, the Democratic Alliance for the Betterment and Progress of Hong Kong (DAB). His article blasts Hong Kong’s judiciary for its elite posturing.
Like Litton, Tam targets the arcane language and British-style courtroom conventions. But Tam also wrote that Hong Kong’s courts should show more deference to the authority of China’s constitution and to the central government. He is suggesting, in effect, that they move in the direction of China’s courts where division of powers and judicial independence are alien concepts. 
Perhaps not by coincidence, Beijing has just issued a lengthy document outlining plans for the reform of China’s own legal system. It is a Communist Party document and says that while the National People’s Congress has a role to play in the process, leadership exercised by the party center must be paramount. Titled “The Plan to Build the Rule of Law in China (2020–2035),” its aim is to perfect a socialist party-led rule of law system with Chinese characteristics. 
Round Up the Usual Suspects… But What Crime Did They Commit?
The laws are nevertheless what they still are and despite overturning Jimmy Lai’s original bail ruling under pressure from on high, Chief Justice Geoffrey Ma issued a final declaration of judicial independence on January 5, to mark his long-planned retirement.
The next major challenge occurred within 24 hours of Ma’s farewell remarks. It began at dawn on January 6, in the form of police raids all over town. Over a thousand members of the force were involved. By the time their task was completed, they had rounded up and arrested 53 pro-democracy activists and aspiring politicians.
They were all accused under the new National Security Law and their alleged crime was subverting state power. The maximum penalty for subversion is life imprisonment, according to Article 22 of the law.
Until then, only a few individuals here had been formally charged under the new law, despite the growing use of its standards to investigate, sanction, and disqualify. A few individuals no longer in Hong Kong have also been charged in absentia. But before the raiding parties set out on their mission, it was unclear as to the range of actions that might be defined as secession, subversion, terrorism and collusion with foreigners.
In fact, the definitions and boundaries are no clearer now than before. The 53 individuals were all associated in some way with the informal poll democrats held last July, in preparation for the Legislative Council election, then scheduled for September 6. 
The purpose of the exercise had been to combat the endemic problem of factionalism within Hong Kong’s pro-democracy camp and allow interested citizens themselves to winnow out the weakest candidates before the actual election took place. All candidate hopefuls had to agree to abide by the results or they weren’t allowed to participate.
The Legislative Council election itself was later postponed for at least a year, ostensibly for health reasons due to an upsurge of coronavirus cases — but more likely to allow the time needed to make the changes that will further disadvantage democrats. 
According to the government’s explanation for what happened on January 6, the July polling exercise was subversive in nature because its goal was to promote democrats’ long-standing dream of winning half the seats in Hong Kong’s Legislative Council. It currently has 70 seats; 35+ was the get-out-the vote slogan for the July poll.
Additionally, Benny Tai as the chief promoter advertised the possibilities. They were ambitious. The Legislative Council actually has little power. Its members cannot even initiate substantive legislation on their own — without permission from the Chief Executive.
But according to Hong Kong’s post-1997 Basic Law constitution, drafted and promulgated by all the proper authorities in Beijing, Hong Kong’s Legislative Council can veto the government budget. The associated procedures for eventually forcing a Chief Executive to resign are also spelled out in the Basic Law (Article 52). Good law professor that he was, Benny Tai explained all this in the many opinion pieces he wrote to drum up interest in the democrats’ July straw poll.
Ultimately, it was a great success. Interest and momentum held from the 2019 protests, to democrats’ landslide win in the November 2019 District Councils election, and on to the July poll. Over 600,000 people turned out to cast a vote for their preferred candidates.
The entire pro-democracy camp pitched in. Benny Tai was the lead promoter. Robert Chung’s new Public Opinion Research Institute took care of the on-line election technology. Power for Democracy, the old group set up by Reverend Chu Yiu-ming in 2002, was involved, so was former legislator Au Nok-him in the role of organizer and coordinator, with no dearth of volunteers.
Friendly shop owners allowed their store fronts to be used for the ID verification procedure before voters were granted access to the online polling site. Most of the pro-democracy political parties and political groups were involved since most of them had entered their candidate hopefuls in the competition.
All the top-tier winners from the July exercise had already been disqualified before the election was postponed. The vetting officers had ruled that candidate hopefuls were not sincere in their declarations of loyalty to Hong Kong’s new political order. So, the police swoop on January 6 must have been a follow-up maneuver, designed to target a full representative sample of the democracy movement’s most active leaders, organizers, and candidate hopefuls.
The round-up thus made perfect sense – from a mainland perspective – to those intent on enforcing the new public security rules. It was only after the round-up was completed and the arrestees were being processed that Hong Kong’s law enforcement authorities realized they had 53 suspects in search of a crime. All were granted bail, ordered to hand in their passports, and released without charge. National security and common law principles had collided head on.
Officials have spent the last several days defending the round-up. Acting with intent to overthrow the government is most certainly a serious national security crime, they say. But democrats have only to hold up their copies of the Basic Law and point to Article 52, where the procedure for “overthrowing” the government — as mainlanders see it — is carefully spelled out.
Executive Councilor and barrister Ronny Tong found himself unable to resolve the contradiction. It was an appropriate dilemma for Tong who, in 2006, was a founding member of the pro-democracy Civic Party. But he eventually decided that attempts at political conciliation were more to his liking than confrontation. He left the party in 2015 and joined Carrie Lam’s Executive Council of ranking advisers two years later.
During a radio interview on January 6, Tong said vetoing all government funding requests could be illegal and could constitute subversion. But vetoing the budget is allowed under Article 52 of the Basic Law. Therefore, Tong thought that only if subsidiary requests — just to keep the government running — were also rejected, would a national security crime have actually been committed.
Nevertheless, he also said that he could not see how organizing a primary election as democrats did last July was an illegal act. Article 22 of the new National Security Law defines subversion as organizing, planning, or participating in acts by force or threat of force or other unlawful means, with the intent of subverting state power. But Tong said holding an informal primary election was not unlawful. Therefore, he could not see how the crime of subversion had been committed. 
In its defense, those speaking for the government said the primary election organizers had been warned that their action was “illegal.” But the organizers had no reason to be concerned. In 2018, officials had said the same thing about a pre-election poll to determine a pro-democracy candidate. It was organized in advance of a special election to fill the seat vacated by a disqualified Kowloon West legislator during the oath-taking saga.
At that time, it seemed just another case of officials and democrats talking past each other on different wavelengths. The pre-election custom began years ago and was allowed to proceed without hindrance. No one ever even tried to suggest that it was a legal feature of Hong Kong’s electoral system with enforceable consequences.
Democrats have always had too many candidates chasing too few seats and came up with the idea of pre-election selection when the original candidate coordination routines didn’t work out so well.
Their only fault was that the organizers might have used some other term to describe their candidate selection effort. For example, had they insisted on calling it a straw poll, instead of allowing the more formal “primary election” term to slip into popular usage, all of this might have been avoided. The Hong Kong government’s mainland advisers might have been less confused by the unfamiliar local political custom that had evolved in Hong Kong’s old political order, as they go about their task of trying to create a new one based on national security rules.
Dr. Suzanne Pepper is a Hong Kong-based American writer and scholar. Her books include Civil War in China: The Political Struggle, 1945-1949 (University of California Press), Radicalism and Education Reform in Twentieth Century China (Cambridge University Press), and Keeping Democracy at Bay: Hong Kong and the Challenge of Chinese Political Reform (Rowman and Littlefield). As a postscript to Keeping Democracy at Bay, Pepper continues to chronicle the progress of Hong Kong’s democracy movement at her blog Hong Kong Focus and on other notable forums such as Hong Kong Free Press. This is an updated version of an article originally posted by Hong Kong Free Press on January 17, 2021, under the title “How Hong Kong’s National Security Law and Common Law System Collided Head-on.”
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Pepper, Suzanne."A Whole New Hong Kong: How Beijing Put Down a Rebellion in its Unruly Southern Border Region." Hong Kong Free Press, Dec 13, 2020. [Return to Text]
Pepper, Suzanne. "Hong Kong’s ‘high Degree of Autonomy’ Wilts Under New Version of Basic Law." Hong Kong Free Press, May 24, 2020. [Return to Text]
Pepper, Suzanne. "How Judges Became the Last Front Line in the Battle for Hong Kong’s Freedoms." Hong Kong Free Press, Oct 24, 2020. [Return to Text]
Pepper, Suzanne. "Henry Litton’s Law: Hong Kong Judges must Put Common Good Above Individual Rights." Hong Kong Free Press, Oct 31, 2020. [Return to Text]
 Huan, Cheng "Why Wigs should Go in Judicial Reform." The Standard, Jan 18, 2021. [Return to Text]
Kang-Chung, Ng. "Hong Kong Not an ‘independent Judicial Kingdom’: Pro-Beijing Heavyweight Doubles Down on Reform Calls." South China Morning Post, Jan 1, 2021. [Return to Text]
Zheng, William."China's Legal Reforms Seek to Cement Party Leadership's Role." South China Morning Post, Jan 12, 2021 [Return to Text]
Pepper, Suzanne. "Combating Factionalism and Annoying Beijing – Hong Kong’s Benny Tai has a Plan for Electoral Success." Hong Kong Free Press, July 28, 2020. [Return to Text]
Pepper, Suzanne."Covid Or Covert? how Beijing Concocted an Election Delay to Reshape Hong Kong’s Legislature." Hong Kong Free Press, Jan 2, 2021. [Return to Text]
Stephanie Kelton (2019), "Vetoing all Govt Funding Request can be Illegal: Ronny Tong." The Standard, Jan 6, 2021. [Return to Text]