Published by The Lawfare Institute
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Editor’s Note: This article originally appeared on Order from Chaos.
I spent my high-school years in Hong Kong, and so it has been sad to watch the last three months of demonstrations, violent actions by protesters, violent responses by the police, and the floundering of the Hong Kong government. A fight to the finish between a politically mobilized public and a recalcitrant Hong Kong and Chinese government is not a totally unlikely outcome. An armed intervention by China to crush the protests would be even worse, and it’s not impossible.
What makes today’s situation especially sad is that it didn’t have to happen this way. Five years ago, there was a path being laid towards a government picked completely through competitive election, which in turn would open the way to develop policies to address many of Hong Kong’s numerous social and economic problems. It was a narrow path to be sure, but rather than try to navigate it, factions in China and Hong Kong preferred to fight rather than win, and they appear to have the whip hand again.
An Imperfect, But Workable, Hybrid
To understand the current situation, it’s necessary to understand the political system that China designed for Hong Kong as it prepared to regain sovereignty over the territory 1997. This political system is embodied in the Hong Kong Basic Law. It’s worth keeping in mind a distinction between the protection of civil and political rights and the institutions that pick a society’s leaders. In liberal, electoral democracies, rights and elections work together and reinforce each other. But some, “hybrid” systems have one and not the other. Hong Kong is one of those systems.
In the China-U.K. Joint Declaration of 1984, which laid out the reversion plan for Hong Kong, and in the Basic Law that elaborated the plan, Beijing pledged that Hong Kong people would enjoy the rights contained in the International Covenant on Civil and Political Rights. The text of the International Covenant became a Hong Kong ordinance. Furthermore, Beijing pledged that the rule of law would apply in Hong Kong, in part to protect those rights, and that there would be an independent judiciary. The legal system was the common law system, not a Chinese-style, rule-by-the-Communist-Party system.
In short, when it came to civil and political rights, Hong Kong basically had a liberal order. This was a precious asset that cannot be over-emphasized. Even today, it should be valued by all citizens of Hong Kong, because they all benefit from its protection.
This Hong Kong liberal order was not perfect, but it worked well for some time. When it came to exercising the right of assembly, organizers of a demonstration would present a plan to the police and if the police had no objection, the demonstration would proceed. These demonstrations were a daily feature of political life. The most impressive exercise of the right of assembly came in July 2003, when hundreds of thousands of Hong Kong people came out to protest a controversial national security law. Ultimately, that peaceful protest succeeded and the proposed law was dropped.
On the issue of how Hong Kong leaders are elected, the set-up was more complicated and less satisfying for those who desired popular, democratic rule. After reversion, only some of the members of the Legislative Council were selected in popular elections; ultimately that share rose to half. The rest were selected in functional constituencies that reflected various economic and professional sectors (bankers, lawyers, real estate companies, manufacturers, educators, etc.). The majority of these constituencies were pro-Beijing and most of them were picked by a small number of voters. Moreover, the chief executive was picked by an election committee comprised mainly of pro-Beijing people. The upshot: Beijing had engineered how senior elective positions were filled to ensure that it maintained significant control and to block political forces it did not like from gaining power.
In part because of the design of this system, there has been a high concentration of economic and political power in Hong Kong. It has one of the highest Gini coefficients—measuring inequality—in the world (53.9). A relatively small number of families and companies control a lot of the wealth and a lot of the political power. Not surprisingly, the public had a high level of alienation against the establishment because of the unequal distribution of wealth and power. One way to rectify the situation was to get more democracy.
In fact, in the Basic Law, Beijing had signaled that it would in the future move to universal-suffrage elections. The promise was vague regarding timing and just how much democracy would exist. The hope was that the chief executive would be selected in a competitive election and that all seats in Legislative Council would be directly elected, and not from small, functional constituencies.
Protests on the Rise
In the second decade after Hong Kong’s reversion to China, two important changes occurred. The first went relatively unnoticed at the time but proved to be consequential. That was that some people in the pan-Democratic, anti-government camp became unhappy with the rules concerning public assembly and began engaging in political action that was unpredictable, relatively disruptive, technically illegal, and sometimes violent. The number of such incidents grew steadily from the middle of the 2000s. It was mainly young people who conducted these new-style protests.
The second change was a decision by Beijing reforming the electoral procedures for the Chief Executive and Legislative Council. It was willing to allow all registered voters to vote for the chief executive, rather than the 800 members of the Election Committee, but there was a catch: It insisted that a clone of the election committee be the body that would nominate the candidates (not, for example, political parties). The nominating committee’s members were predominantly allies of Beijing and not representative of Hong Kong society as a whole. The conclusion that Hong Kong democrats drew was that control was still China’s priority and that any election result would still not reflect the will of the majority.
In response, some older Hong Kong democrats proposed the Occupy Central movement, which was based on Mahatma Gandhi’s principles of civil disobedience and included a willingness to be arrested on the spot and tried according to the rule of law. But this effort was hijacked by the Umbrella Movement, which was led by young activists and resulted in the occupation of three major thoroughfares in the fall of 2014. Gandhi Rules were not in effect. There were some episodes of violence, but a stable coexistence between the authorities and the occupiers soon prevailed. The end of the occupations was basically peaceful and lawful.
The Hong Kong government made one more try on electoral reform, drafting detailed rules for how the nominating committee would work. The proposal was wonky and intricate, but in my view, it created a “good enough” possibility that the right kind of democrat could actually be nominated to run for chief executive, creating a competitive election against an establishment candidate (I detail this in my 2016 book). But the radical wing of the opposition opposed such a system and pressured more moderate elements to reject it.
China responded badly to the collapse of the electoral reform project. It no doubt believed that its “generosity” in allowing electoral reform had been met with ungrateful resistance. Moreover, some of the more radical members of the Umbrella Movement began advocating “localism,” “self-determination,” and “Hong Kong independence.” Not surprisingly, China regarded this as a challenge to its sovereign authority. It took measures to bar pro-independence candidates from running for re-election and to expel opposition legislators who were insufficiently respectful of China’s authority. Chinese agents came across the border to snatch other people it didn’t like, denying them their right to appear in Hong Kong courts. China’s initial pledge to allow Hong Kong people to exercise civil and political rights and respect the rule of law was positive and important; starting in late 2015, however, it began to renege on that pledge.
The 2019 Extradition Law
But the most serious challenge to the rule of law was the extradition law, which, if passed, would have allowed China to request, with little or no justification, the transfer of individuals in Hong Kong to the mainland in order to subject them to the Chinese legal system. It remains unclear whether Hong Kong’s Chief Executive Carrie Lam was the author of this proposal, as she says, or whether Beijing put her up to it.
Whatever the case, it turned into a political disaster for the government, because Hong Kong people quickly mounted strong resistance to the draft law. On the one hand, there have been a number of demonstrations by middle-class citizens that followed the established rules. On the other, there were also elements in the protest movement who were ready to be drawn into violent encounters with the Hong Kong police. Instead of occupying major public spaces, as in the Umbrella Movement, the leaders of movement undertook a kind of urban guerrilla warfare, creating confrontations in various parts of the city and keeping the Hong Kong police on the defensive.
One can imagine several ways the crisis could be brought to an end. The most optimistic is that Hong Kong government leaders, authorized by Beijing, join representatives of the various key sectors of Hong Kong society to undertake a dialogue that addresses immediate issues, like how police interact with protesters, but also more fundamental problems like the sources of social and economic inequality that have bred such serious alienation and the failure to restart electoral reform. This would be a Hong Kong project, the motto of which would be the wisdom of Benjamin Franklin, “We must, indeed, all hang together or, most assuredly, we shall all hang separately.” Chief Executive Lam made a start in addressing some of the protesters’ demands, which could be a way of jump-starting dialogue, but the response from protesters thus far has been that she must capitulate and agree to all of them.
Second, the movement could just peter out. The school year has begun, so the pool of protesters has shrunk. The leaders of the movement could simply accept that they have achieved as much as they realistically can and retire to struggle another day. In effect, declare victory and go home. But problems would persist.
Third, and unfavorable, Beijing could intensify its restrictions on civil and political rights and further constrain Hong Kong’s judiciary and rule of law, to be enforced by the Hong Kong government. If that is the result of the scale and character of the latest protests, it is hard to see how Hong Kong comes out better.
Fourth, Beijing could decide that the only way to bring Hong Kong under control is to send in the People’s Armed Police and other security services and impose tighter controls on Hong Kong society. Again, Hong Kong would lose assets that are very precious.
Finally, and very hypothetically, the anti-Beijing movement in Hong Kong could actually succeed in securing a different arrangement with China, even independence. Yet that seems implausible. Ensuring China’s sovereignty and territorial integrity is one of Beijing’s core interests. My guess is that it would use whatever means necessary to avoid losing Hong Kong. For local activists to base their actions on the assumption that such a victory is possible is the height of recklessness and hubris.
One can hypothesize that hardline officials in China and hardline protestors in Hong Kong are playing off each other. Each justifies each other’s existence. Each reacts to the actions of the other. Each group would rather fight than win (in the sense of searching for a mutually acceptable compromise). At this point, with Carrie Lam’s concessions, it is time for Hong Kong radicals, in the interests of Hong Kong society as a whole, to demonstrate conciliation. The problems facing Hong Kong are legion but they can only be resolved if violence ends and dialogue begins.
The need for a “cooling-off period” in the protests and demonstrations—and for self-restraint—is urgent. China will celebrate the 70th anniversary of the founding of the People’s Republic on October 1. For that celebration to take place while protests continue would create great embarrassment for the Chinese leadership. That may be exactly what some in Hong Kong want, but the risks for Hong Kong of causing that loss of face are profound. China is not going away. It is Hong Kong’s sovereign. To live successfully with that sovereign and to restore a high degree of autonomy under current circumstances requires Hong Kong to pick its fights carefully.