Last Call for Hong Kong’s Rule of Law

Trying protest leaders fairly would show the city still has a fair justice system.

Activists use yellow umbrellas during a gathering outside the government headquarters to mark the fourth anniversary of mass pro-democracy rallies, known as the Umbrella Movement, in Hong Kong on September 28, 2018. ( ANTHONY WALLACE/AFP/Getty Images)
Activists use yellow umbrellas during a gathering outside the government headquarters to mark the fourth anniversary of mass pro-democracy rallies, known as the Umbrella Movement, in Hong Kong on September 28, 2018. ( ANTHONY WALLACE/AFP/Getty Images)

On March 27, 2017, the leaders of the 2014 Umbrella Movement in Hong Kong turned themselves in to the police. The group included founders of the movement—Benny Tai, a professor; Chan Kin-man, a sociologist; and Chu Yiu-ming, a pastor—as well as other student leaders, lawmakers, and politicians.

Footage of the moment, showing them waving to supporters and putting their palms together in a gesture of respect, recalls Auguste Rodin’s sculpture The Burghers of Calais. Its bronze figures depict a story from 14th-century France: Six leaders of a besieged town surrendered to England in hopes of sparing their city.

But here the stories differ. The burghers of Calais stepped out in an act of sacrifice and were saved by an act of the queen’s mercy. In their arrest, the Umbrella Movement organizers were accepting the consequences of an act of civil disobedience but did not look to be spared by leaders in Beijing. Rather, they placed their trust in Hong Kong’s rule of law and the provisions in Hong Kong’s Basic Law—the constitution of the Special Administrative Region—for freedom of speech and freedom of assembly. The trial of the Umbrella Movement leaders began this week, and on Monday they entered a plea of not guilty. The proceedings will be a litmus test for Hong Kong, but also an opportunity to uphold one of the territory’s key values.

Hong Kong’s rule of law has been increasingly eroded by the government’s fealty to Beijing. The Umbrella Movement itself was a pro-democracy protest that lasted 79 days and converged on three main sites, including government headquarters in the city’s Central District. The movement was a call for the direct election of Hong Kong’s leader, the chief executive, and symbolized a political awakening for a generation of Hong Kongers increasingly keen on real democracy in their city.

Protest has a long history in Hong Kong, but the Umbrella Movement demonstrators have found themselves criminalized on often flimsy grounds by a government increasingly eager to placate Beijing. Protestors have been arrested for “unlawful assembly” and “public disorder,” while this week’s trial includes charges for “conspiracy to commit public nuisance” and “incitement to commit public nuisance.”

Events since 2014 have not inspired confidence in Hong Kong’s freedom of speech or rule of law. In 2015, five booksellers disappeared, abducted across the border into China and held in extrajudicial detention. In 2017, elected lawmakers in the Legislative Council were barred from taking their seats for repeating their oaths of office in ways deemed disrespectful to China. Most recently, Victor Mallet, the Asia editor for the Financial Times, was stripped of his visa status, likely because he had hosted a talk at the Foreign Correspondents’ Club by a speaker who advocates for Hong Kong’s independence. Confidence in Hong Kong’s institutions, widely seen as central not only to its culture but also to its economic standing, is at an all-time low.

This trial could be a turning point. There are two possible scenarios. One sees this as the beginning of the end for Hong Kong. Violations of Hong Kong’s Basic Law, which provides for a “one country, two systems” principle that Hong Kong will maintain a high degree of autonomy for its first 50 years under Chinese rule, are increasingly audacious. Imprisoning the Umbrella Movement leaders aligns with the way the Chinese Communist Party has always narrated challenges to its power: A small minority of wrongdoers misled the population. On his 2017 visit to Hong Kong, Chinese President Xi Jinping said any effort to “challenge the power of the central government … is an act that crosses the red line.”

A powerful and rising China, it is argued, can now set red lines, and the international community will not intervene. A case in point is the British government, which has come under criticism from Hong Kong’s democrats and the last British governor for failing to be more vocal in support of political freedoms in its former colony. Even one of the defendants, the law professor Tai, wrote, “We may not be able to stop the advance of authoritarianism. But we must do what we can at least to slow it down.”

Yet the second possibility is that the court’s judgment restores confidence in Hong Kong’s rule of law. Amnesty International suggests that the Hong Kong government drop its charges against the nine leaders, “based on their peaceful exercise of the rights to freedom of expression and peaceful assembly.” Amnesty argues that the Public Order Ordinance that underpins the charges does not meet the United Nations Human Rights Committee’s provisions for such freedoms.

If the Hong Kong government chose to defend freedom of speech and assembly, it would have the opportunity to alter the narrative of the Umbrella Movement. Rather than a story about misguided students demonstrating about economic issues, an exoneration would highlight the fact that it was a broad-based movement centered on greater democracy. As Hong Kong political scientists Samson Yuen and Edmund Cheng write, an estimated 18 percent of respondents to one poll reported joining the Umbrella Movement—and in the researchers’ own survey of 1,681 participants, 96 percent listed “genuine universal suffrage” as an important motivation for participation.

Letting young people freely participate in a popular movement would give truth to Xi’s own words, that “The people of Hong Kong enjoy more extensive democratic rights and freedoms than at any other time in its history.”

If the present is our guide to the verdict—legal and political—of the Hong Kong Umbrella Movement, then the pessimistic outcome is more likely. The joint statement of the nine defendants affirms that “a movement can be crushed but not defeated,” a suggestion that their fate is not the fate of the movement.

And yet the long view of history demonstrates that China has always benefited from Hong Kong’s status as a place of exception. In the early 20th century, Hong Kong nurtured Chinese revolutionaries and nationalists. As a node in the diaspora, Hong Kong channeled migrants, remittances, and even food in times of famine. Even in the early years of the People’s Republic of China, Communist Party leaders recognized that Hong Kong’s status quo was in its own interest, providing the foreign exchange that was necessary for industrialization.

In the reform era beginning in the 1980s, Hong Kong sourced China’s economic miracle: By the 1990s, Hong Kong and Macau were the source of 70 percent of China’s total foreign investments; by 2002, over 90 percent of Hong Kong’s external investment ended up in China; and by 2005, Hong Kong was responsible for one-third of all foreign direct investment in China. Today, although the share of the economy is far smaller, Hong Kong exceptionalism continues to benefit China: Its rule of law protects innovation, its universities see about 75 percent of its nonlocal students come from China, and more than half of the companies listed on the Hong Kong stock exchange are mainland businesses. From politics to economics, from culture to invention, China does better when Hong Kong stays distinct.

This distinction requires the protection of Hong Kong’s autonomy and the principles of “one country, two systems.” People often speak of Hong Kong’s values and its unique culture, but it is its systems that have enabled such values to flourish. When the leaders of the Umbrella Movement surrendered to the police, they submitted themselves to Hong Kong’s institutions. It is in the interest of all—Hong Kong society, its government, and Beijing—that their trial reinforces public confidence in their faith.

Denise Y. Ho is an assistant professor of history at Yale University.

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