“Comprehensive jurisdiction”: Closing a historical parenthesis?

Joshua Wong at the 4th anniversary event on 28 Sept 2018.

With the approach of the fourth anniversary of the Umbrella Movement, many people’s thoughts have been turning to the current state of Hong Kong politics. The Umbrella Movement ended in a stalemate: on the one hand the government refused to make the slightest concession to the protesters, but the movement was successful in ensuring that the political reform package proposed by Beijing (electing the Chief Executive by universal suffrage but with a strict vetting of candidates by Beijing loyalists) was voted down in June 2015. While then-Chief Executive CY Leung continued to refer to the movement as illegal and to threaten the democrats with an electoral backlash at the 2016 LegCo elections, his strategy at first stalled on both counts. Courts were initially reluctant to follow the government in freedom of assembly cases. The 2016 LegCo elections were a resounding victory for the pro-democracy camp, and a number of post-Umbrella groups were able to send representatives to LegCo.

However, the post-election sequence was disastrous for the pro-democracy camp. The ill-advised idea of several lawmakers to take their oaths accompanied by various theatrics and verbal slurs finally provided the Beijing government with an opening to intervene directly. When the NPC standing committee, in an unprecedented move, adopted an interpretation of the Basic Law, unsolicited by the Hong Kong government or courts, which intervened directly into an ongoing court case, it not only eliminated Yau Wai-ching and Baggio Leung, but also profoundly transformed the nature of LegCo elections. Subsequently, the interpretation served as a basis first to disqualify four other duly elected lawmakers, and then to preemptively eliminate candidates from standing for by-elections. In both cases, the curbing of basic political rights was actively abetted by the Hong Kong Department of Justice, which aggressively prosecuted lawmakers and produced legal arguments to support administrative disqualifications. After six pro-democracy lawmakers had been eliminated in this manner (removing the camp’s veto power), the rules of procedure in LegCo were changed to end filibusters. This sequence has, for all practical purposes, put an end to the chamber’s role as a counter-balance to the government. While the first years after the handover continued to see incremental progress towards more democratic institutions as foreseen in the Basic Law, since Beijing’s White Paper on One Country Two Systems was published in 2014, the movement has been reversed, and the dynamics now point towards an ongoing reduction of the degree of democracy in Hong Kong’s institutions. Political reform is likely to be permanently shelved.

In parallel, the DoJ’s aggressive strategy of appealing judgments seen as too lenient, including by reportedly overruling the Director of Prosecutions (making use of a power that the pro-democracy camp had fought hard to eliminate at the time the Basic Law was adopted), has gradually eroded the judiciary’s resistance to the new legal mindset. Although the Court of Final Appeals ended up overturning the prison sentences in the Civic Square case, it reaffirmed the colonial-era Public Order ordinance and adopted a new standard which tends to place the onus on demonstrators to take preemptive steps to avoid the slightest injury to police during rallies. These were precisely the colonial laws that triggered large-scale protests in the 1970s and 1980s before Chris Patten amended the ordinance, a decision that was reversed by the pro-Beijing provisional LegCo after the handover.

These steps are all in keeping with the re-interpretation of “One Country Two Systems” that was set out in the 2014 White Paper. As Beijing officials have repeatedly underscored – Zhang Dejiang during his visit to Hong Kong in 2016, Xi Jinping at the 20th anniversary of the handover in 2017 – since 2014, Beijing claims something it has termed “comprehensive jurisdiction” (quanmian guanzhiquan) over Hong Kong. In practice this means that it can intervene directly in Hong Kong legal or political affairs whenever it believes the issue is important enough to warrant doing so. While article 23 is still on hold, Beijing now intervenes proactively in cases which would likely fall under the type of national security legislation it envisages. It has side-stepped the absence of an extradition agreement by coercing suspects back to China in certain cases (Xiao Jianhua, booksellers). Suzanne Pepper has argued that former Chief Executive CY Leung’s violent social media campaign against the Foreign Correspondent’s Club (FCC), after it extended an invitation to the Hong Kong National Party’s (HKNP) Andy Chan, was precisely rooted in Beijing’s idea that article 23 must prevent foreign-affiliated entities like the FCC from playing any role in Hong Kong politics. The HKNP was banned based on a colonial ordinance originally targeted at triads. These may all be seen as creative ways of preparing public opinion for a more comprehensive national security law.

Posters extolling the Greater Bay Area in HK’s MTR

Finally, while many Umbrella Movement participants tend to stress their achievement of bringing about deeper changes in the mindsets of the Hong Kong public, this too has been met by a counter-strategy on behalf of the Hong Kong government and pro-Beijing forces. The extravagant and far-over-budget infrastructure projects (High Speed Rail and HK-Macao Bridge) have been accompanied by a new discourse about integrating Hong Kong into a fuzzy “Greater Bay Area,” in which the city’s problems of lack of space, expensive housing and lack of care for the elderly can finally be solved. In this case too, CY Leung has played a pioneering role, proudly proclaiming his new-found identity as a “Greater Bay Area Person.” Beijing has provided increased administrative convenience for Hong Kong passport-holders in the mainland. While this effort is more subtle than previous attempts to promote national identity, it shares the goal of diluting Hong Kong’s political specificities and further blurring the border between “river water” and “well water” (as Deng Xiaoping once put it). Many legal experts believe the decision to place part of Hong Kong territory under mainland jurisdiction for the increased convenience of a short train ride has no basis in the Basic Law. But it certainly contributes to affirming and making visible Beijing’s “comprehensive jurisdiction.”

While comparisons between Hong Kong and Taiwan have been rife in the past few years, the parallels are not always persuasive. Taiwan’s “return” (guangfu), after a long era of colonization, to the administration of the ROC government (as successor to the Qing state that ceded it to Japan), without a referendum or other form of consultation, led to a protracted period of renationalization. In the case of Hong Kong, the honeymoon with the new authorities lasted longer than in Taiwan, where any remaining goodwill evaporated after the 2.28 massacres of 1947. In Hong Kong, attempts at renationalizing only began in earnest in 2014, and the road may still be long until a native democracy movement can gain the same type of momentum as the dangwai movement in Taiwan in the 1980s. Therefore, the most relevant comparison may be between Hong Kong today and Taiwan in the 1950s.

Ultimately, these developments raise the question of Hong Kong’s historical trajectory. Today, there is a strong feeling of a return to the political and public order restrictions of the colonial era. Politically critical groups will probably retreat to marginal spaces, as they did under British rule in the 1960s and 1970s. It is surely no coincidence that 2017 saw a rash of critical engagements with the 1967 riots and their aftermath. The growing exclusion of the pro-democracy camp from LegCo may push the opposition to regroup in a dangwai configuration like in Taiwan. Consequently, the momentum that Hong Kong’s civil society built up in the 1980s and 1990s, may be reconfigured as a simple historical parenthesis of 30 years, lasting roughly from the first elected LegCo seats in 1985 until the White Paper of 2014. On the other hand, it is undeniable that Hong Kong society has begun to shake off some of its colonial apathy. Is there then still a chance that the dynamics of decolonization, as claimed by the Umbrella and post-Umbrella movements, can quietly work towards a deeper transformation of society? Can these transformations counteract the powerful dynamics of integration promoted with unlimited resources by the government? This slow race between competing social dynamics is likely to shape the political situation of Hong Kong in the coming years.

This year I will be trying to write a new post for this site at the end of every month. This is the second in the series.