Posted on: August 25, 2020 Posted by: admin Comments: 1

Author : Aayush Akar, Student at National Law University Odisha

Co-Author : Jaykumar Gajbhiye, Student at National Law University Odisha

INTRODUCTION

Hong Kong has been a “special administrative region” of the “People’s Republic of China” (PRC) since the handover from “British colonial rule” in 1997. Hong Kong retains some legal rights characteristic of capitalist democracy, including civil rights enforcement, territorial control areas designated for autonomous government, and the legal framework with the modern postcolonial rule. In all non-sovereign administrative regions, it has one of the highest levels of self-rule[1]. Even then, there is a shortage of fair proportional representation in elections for the “Chief Executive”, and there are persistent doubts regarding Beijing’s control in the government agency and any more development that could be made in the country in terms of democracy.[2] Hong Kong, therefore, faces a battle against its colonial history, the PRC’s political strength, and its own culture, as a single liberal-democratic government.

Amid scepticism over the right to repatriate escapees to other PRC territories, including Taiwan, the administration of Hong Kong announced improvements in the “extradition laws” in February 2019. It introduced a process through which the CE of Hong Kong would move deserters to any country that lacked an agreed extradition agreement in the region, expected to close all legal loopholes.[3] For thousands of Hong Kong citizens, there have been considerable worries regarding Beijing’s alleged role in shaping these proceedings, its absence of political legitimacy for the legislation, and the capacity for such extraditions to weaken local human rights security for offenders.[4]

The first demonstrations took place on 31 March 2019, with nearly 12,000 demonstrators seeking the removal of the Bill (“according to the organizers, the Civil Human Rights Front”).[5] In April the protest gathered momentum, and about 130,000 protesters supported the demonstrations. Tens of thousands participated in the following movements in May and June.[6] In the ensuing months, demonstrators started demanding that the bill be repealed, seeking parole for protestors detained, an impartial investigation into suspected police violence and full universal suffrage which the present Basic Law lacks. It is also around this period when activities started gradually on the fringe of the uprising, outside nonviolent demonstration, involving destruction of government buildings and clashes with the police.[7]

ABOUT FUGITIVE OFFENDERS AMENDMENT BILL

The demonstrations in Hong Kong in 2019-20 culminated in the introduction of the Hong Kong government’s “Fugitive Offenders Amendment Bill”. The bill that has now been aborted would have permitted extradition to courts in which Hong Kong has not signed extradition arrangements, like China mainland and Taiwan. The fear emerged that the citizens and tourists of Hong Kong would be subject to the legal framework of China, thereby weakening the sovereignty of Hong Kong and breaching civic liberties. It set up a chain of protests, which began on 15 March 2019 by a meeting at the head office of the government, with hundreds of thousands attending the protest on 9 June 2019, followed by a meeting outside the Legislative Council Complex on 12 June to prevent the second reading of the bill that spread out into violence that has drawn global attention.[8]

The “Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019” was a draft law on deportation to revise the “Fugitive Offenders Ordinance” in accordance with specific surrender agreements and the “Mutual Legal Assistance in Criminal Matters Ordinance” such that reciprocal legal support agreements may be rendered between Hong Kong and every other location outside Hong Kong In February 2019, the Hong Kong government introduced the bill to create a system for moving fugitives not only to “Taiwan but also to Mainland China and Macau”, which are already excluded in existing laws.[9]

The idea was brought out when, after a vacation in Taiwan, a 19-year-old Hong Kong man reportedly assassinated his pregnant 20-year-old girlfriend in February 2018. The man escaped from Taiwan last year, then moved to Hong Kong. Taiwanese officials were requesting assistance from Hong Kong officials to deport the individual, but officials in Hong Kong said they could not cooperate due to a lack of extradition treaty with Taiwan. But the Taiwanese government said it did not agree to extradite the perpetrator as a result of the new amendments and advised Hong Kong to comply with the matter separately.

WHY THE BILL IS CONTROVERSIAL?

More than one million protesters from Hong Kong marched against a contentious extradition bill amid claims that the semi-autonomous region would erode autonomy. Under the principle of “one nation, two systems” which granted political and legal autonomy to the town of Hong Kong, a British territory until 1997, China was handed over to China. Critics feared that the bill would weaken the legitimacy of judicial processes in Hong Kong and jeopardize Hong Kong residents and international nationals by requiring criminals to travel to mainland China for proceedings.

Hong Kong courts would be given the right to appeal any ruling, but they would not be able to examine the “standard of justice” that the victim would get, or that they were guilty of the alleged crime. The reforms would include about 37 offences, including bribery and other offences including white collars. Several changes have been proposed by the Administration to create a requirement for the review of petitions for extradition for offences subject to a mandatory sentence of seven years and to set a time period for the avoidance of retroactive requests for the criminals. In fact, only the seven-year term would actually be inserted into the legislation.[10]

The administration has introduced changes to mutual legal assistance that would allow outside prosecutors to request help from Hong Kong in criminal investigations, involving search and seizure, and the forfeiture and restraint orders. The adversaries of the bill saw this as a backdoor to extend into Hong Kong Chinese law- a legal system that is consistently used to punish dissenters and sceptics, perhaps by charging them with other trumped-up crimes, sometimes by using nebulous charges such as “endangering state security.[11]

While the bill prohibits political offences, opponents point out that China still threatens protesters, like religious figures and human rights campaigners, with criminal offences such as “doing an illegal business” and “picking quarrels.” When the bill becomes law, foreign nationals and even travellers travelling through the regional centre may even be arrested and sent to the mainland, a development that will possibly deter investors. In the midst of anxiety about the rampant invasion of Hong Kong by the Communist Party, the extradition bill is seen as a decisive blow to the freedom of the former city, which was ensured for 50 years at the 1997 transfer to China. If the law is passed, critics warn that it will bring an end to the city’s impartial judicial system and open the way to China’s stringent political structure.[12]

CONCEPTUAL FOUNDATION AND THE COMMITMENT OWED IN GOVERNMENTAL ALLIANCES

Due to the Hong Kong administration’s inability to communicate with people in the consultative discourse, a large portion of the populace has been increasingly and almost entirely removed from politics. As Lord Alton put it, Hong Kong’s sovereignty, rule of law, and civil rights security have been steadily undermined over the past ten months[13]. The politics and social influence strategy is very close to a “broken window” strategy defined by cultural criminologists. Broken windows hypothesis believes indicators of chaos and violence, such as broken windows, vandalism, unemployment, trafficking, and so forth, contribute to increased crime and violence. Targeting recognizable criminal indicators decreases the risk of violence and overall deviance. The hypothesis has numerous critics and has been widely debunked for overstating the efficacy of active crime prevention behaviour.[14] This is the path adopted by the “Hong Kong Police Force” (HKPF) and backed by Carrie Lam, CE. This theoretical construct has been developed in reaction to gestures or actions such as mask-wearing, wearing black, screaming at law enforcement officers to excuse excessive usage of force.[15] The usage of pepper spray in a vacant spot, widespread detention, use of rubber bullets and bean bags on demonstrators, photographers, medics and spectators, for example, have all become normal police work. The “HKPF” is a police force that doesn’t rely on disseminating crowds; rather, it appears bent on triggering or inciting abuse. It goes against international rules on police activism and an effort is being made to discredit a small extremist minority as secret agents that work against Hong Konger’s wishes and are manipulated by foreign powers.[16] It is a “broken windows approach” to policing demonstrations.

Rather than reducing social disturbance, this response to police action has nurtured resentment and strengthened civic support for the suffering of demonstrators – there is particular public concern for the front lines. Of starters, there were a variety of cases of more marginalized group members (such as the aged or the impaired) who stand between the law enforcement officers and demonstrators to shield youthful protesters.[17] This is the mixture of repressive “broken windows policing” and a CE, who frequently and continually spurns to address the people – who presumably breaches her legal and moral duties of justice for their residents – that supports all Hong Kongers right and responsibility to participate in “civil disobedience” to fight oppression. The persistent lack of constitutional defiance in effect contributes to the responsibility to uncivil defiance to combat growing oppressive government controls.

THE GENERATING CONDITIONS WHICH PRINCIPLED DISCOURTEOUS INSUBORDINATION

When up to 26% of the Hong Kong’s population demonstrated to demand the removal of the “anti-extradition bill”, the police replied by launching multiple rounds of tear gas at a legitimate demonstration.

Instead of promising to drop the bill or giving further time to address it, Carrie Lam sought to speed up the procedure of having it passed in the legislative council. It should have subverted the normal law-making procedures. There was no collective discussion or dialogue with civil society leaders who came out to oppose the legislation. Then, Ms Lam made an official statement criticizing Hong Kong’s “naughty children.” The mass movement was labelled as an insurrection.

Since that day countless nonviolent marches and demonstrations have been coordinated by different segments of the society, including “doctors and nurses, mothers, lawyers, ‘silver-hairs’, children and families, journalists, the advertising sector, accountants, teachers, lawyers, social workers, students, journalists, migrant workers, ‘white-collar workers’, trade unions, civil rights organizations”, and more. There have been meetings in shopping centers to sing ‘Glory to Hong Kong’ (“the unofficial anthem of the movement”), origami paper crane folding, letter-writing engagements, family walks with balloons to “Legislative Council”, “engagement with the international community to draw attention to the cause, petitioning the support of overseas legislators”, “lobbying for and then celebrating the passage of the United States’ Human Rights and Democracy Act (HRDA)”, “building shrines to remember people or prevalences”, producing Lennon Walls, handicraft, public dances, concerts, fun-runs, mask-wearing in legal conditions, ascends to the Lion Rock, establishing human-chains, economic spurn, workers’ walkout, walks to work, lectures and news conferences.

Consequently, the administration has had the chance to “de-escalate” civil turmoil at many critical points. It has taken measures that have already agitated rising tensions. However, the CE appears knowingly to have turned a “blind eye” to numerous incidents of police abuse[18] that can be perceived as approval of it.[19]  Nevertheless, the social network,[20] which is primarily the key source of knowledge in the media environment controlled by pro-government outlets, well-documented such occurrences.[21]

The CE has continually declined to partake in cogitative action or discussion that, as Smith described, is “suitable for contemplation, consideration, and dialogue”. Instead, political language promotes non-deliberative behaviour. Unfortunately, after Carrie Lam became the CE in 2017, she stressed the foregoing administration’s incompetence and branded politicians out of communication with the people.  She pledged “policies that would more effectively react to people’s expectations”.  However, since widespread protests against the “anti-extradition bill” began for the first time in April, Lam has been nothing but sensitive to the needs of the general public. Instead of participating in negotiation, Lam attempted to drive through the extradition bill, which was eventually dropped officially just “three months” after the mass demonstrations started.[22] Lam used the “Emergency Regulations Ordinance” in October 2019 to enact an anti-mask ban that only exacerbated disputes. As he wrote, Lam proposed a pension and social care package of HK$10 billion but neglected to discuss the continuing financial instability or political dysfunction in the LegCo.[23]

This is incompatible with the stance adopted by former CEs, who now seem very “reflective, respectful and dialogic” as opposed to Lam (although they could not be contemplated so in any actual perception).

In 2003, for instance, demonstrations by about half a million citizens against new national defence legislation prompted the bill to be nixed. James Tien, then head of the “pro-business Liberal Party”, was frightened by the demonstrations in China and backed down his party’s assistance of the bill. He also gave up on his role on the Executive Council of Hong Kong. His move designated that the administration no longer had the assistance to enact the legislation. Likewise, during the “Scholarism demonstrations” in 2012, orchestrated by “Joshua Wong”, the then CE, “Leung Chun-Ying” in due course agreed to meet with Joshua.  Finally, C.Y. Leung left the nationwide curriculum at schools option leaving it productively deceased. And although the core occupying campaign struggled to accomplish its targets in 2014, it was mostly accepted for 79 days. In comparison, the government’s approach to escalating disturbances in 2019-2020 was to curb demonstrations.

The pervasive involvement in recent demonstrations indicates a refusal to acknowledge an evolving democratic system, which is meant to suppress dissent and restrict the political engagement of civil society. The “political system” is now mainly unfair and misses the prior leading factors of lawfulness; in near-legitimate political societies, the CE and its government contravene their responsibilities to citizens. People’s mutual obligations are relinquished; their responsibility of “civility” is suspended.

CONCLUSION

It has been seen that “liberal democratic” governments demand power on the grounds of such basic values. We include them as axioms in statements of authority or demands for submission from subjects that they are fundamentally separate. Thus Hong Kong is an unusual case: either its assertion of authority is enmeshed in axiological contradictions over its dualistic constitutional morality or it may make arguments only on the grounds of the PRC’s constitutional values. In this scenario, it is uncertain whether the Hong Kong government will invoke “liberal democratic constitutional moral grounds” for obeying its rules.

It is anticipated that such a study would potentially allow Hong Kong’s  “leaders and activists” to articulate more explicitly the institutional structure of their contending assertions of sovereignty, preferably to promote a more inclusive and cohesive discourse. The study of demonstrations in other countries may also be important in the heuristics of fundamental values and legal arguments and may benefit not only scholars but policymakers and social activists who strive for a better and more inclusive discourse with “mass movements” worldwide.

Perturbing for Hong Kong, nevertheless, the fundamental, non-autonomous base of the PRC government will pursue to trust the “democratic moral constitutionality” to which demand is made regionally. The allegations of unconstitutionality are compounded by many external considerations. Oxfam has stated that wealth disparity is at its most extreme in 45 years in Hong Kong: it would be one of the 10 most segregated in the globe if it was a federal state.[24] The bourgeois arrangement of Hong Kong has possibly always been constrained in its political ambitions. In a conversation in 1988, Milton Friedman indicated that “universal suffrage and political processes would be subordinated for the sake of economic prosperity to Hong Kong’s free-market capitalist systems of laissez-faire governance”.[25] The former CE Leung Chun-Ying expressed this belief that compulsory and fair voting will enable disadvantaged citizens to seek redistributive and social programs, thereby weakening the existing “neoliberal capitalist economic” structure.[26]

Given the constitutional upheavals that have already occurred in their first few decades, future disputes appear unavoidable between Hong Kong’s local “constitutional settlement” and the PRC interests in the coming years. Many of these recent demonstrations – “Umbrella Movement, urban development demonstrations” and more were established on broader core problems that are still under the ground.[27] The faulty arguments on the validity of several controversial rules and regulations emerge absolutely from a tangled and unintelligible procedural morality.

In a conversation with former Governor “Chris Patten” in 1993, it was implied that efforts at political change were “nowhere fast” owing to the intransigence of Beijing in preparation for the transition and the “Joint Declaration”[28]. For some, development has been likewise torturing since the transfer. While these events take time to be fully institutionalized, efforts at introducing stronger democratic legitimacy have in recent times been explicitly hindered by the NPCSC’S interference following the concept of “gradual and orderly progress”. Involved leaders of the demonstrators who are calling for equal suffrage and civil rights secured to be reached quickly feel the impatient speed of democracy: how quick is the main issue of serious significance now despite the fear of rising tensions in 2019. This does not take into account the worries of Hong Kong’s solution post-2047, which raises even more queries about the consistency and liveability of these assertions to the democratic mandate. As such, for the near future we can expect that there will tend to be legislation that exposes these unintelligible assertions to the authority which reflect an “incoherent constitutional morality” and which go hand in hand with validity counterclaims from demonstrators, not just on the legislation and dispute but, as shown by latest anti-Bill demonstrations, contentious and polarized.

There will appear to be legitimate reasons for the opposition in any potential dispute between the Mainland’s pragmatic solution and the radical fundamental normative arguments raised under Basic Law, as far as protestors argue for certain liberal democratic values. Hong Kong is either to find some plausible legal procedural argument that offers strong ethical grounds for compliance or has to seek better consistency as a “Liberal Democratic regime”.

FOOTNOTES

[1] “Danny Gittings, Introduction to the HongKong Basic Law” (HKU Press 2013).

[2] “Hsin-Chi Kuan and Siu-Kai Lau, Between Liberal Autocracy and Democracy: Democratic Legitimacy in Hong Kong” (2010) 9 Democratization 58–76.”

[3] “Extradition bill not made to measure for mainland China and won’t be abandoned”, Hong Kong leader Carrie Lam says South China Morning Post (1 April 2019) https://www.scmp.com/news/hong-kong/politics/article/3004067/extradition-bill-not-made-measure-mainland-china-and-wont.

[4] “Alfred M Wu, ‘HK leaders must avert rule-of-law decline’ The Sunday Times (7 July 2019)” http://news.nus.edu.sg/sites/default/files/resources/news/2019/2019-07/2019-07-07/HK-st-7jul-pB7.pdf

[5] “In Pictures: 12,000 Hongkongers march in protest against ‘evil’ China extradition law, organisers say’ Hong Kong Free Press (31 March 2019)” https://www.hongkongfp.com/2019/03/31/pictures-12000-hongkongers-march-protest-evil-china-extradition-law-organisers-say/.

[6] “Over a million attend Hong Kong demo against controversial extradition law, organisers say’ Hong Kong Free Press (9 June 2019)” https://www.hongkongfp.com/2019/06/09/just-no-china-extradition-tens-thousands-hong-kong-protest-controversial-new-law/.

[7] “Why are there protests in Hong Kong? All the context you need bbc (4 September 2019)”   https://www.bbc.co.uk/news/world-asia-china-48607723; “Hong Kong leader will suspend unpopular extradition bill indefinitely’ Los Angeles Times (15 June 2019)” https://www.latimes.com/world/la-fg-hong-kong-extradition-20190615-story.html.

[8] Why Are People Protesting in Hong Kong? – The New York Times, https://www.nytimes.com/2019/11/13/world/asia/hong-kong-protests.html (last visited Aug 24, 2020).

[9] Everything you need to know about Hong Kong’s extradition law — Quartz, https://qz.com/1635504/everything-you-need-to-know-about-hong-kongs-extradition-law/ (last visited Aug 24, 2020).

[10] James Carter & Jeffrey Wasserstrom, The fall of Hong Kong, The Hindu, Jul. 27, 2020, https://www.thehindu.com/opinion/op-ed/the-fall-of-hong-kong/article32197829.ece (last visited Aug 24, 2020).

[11] Hong Kong’s controversial extradition bill explained | News | Al Jazeera, https://www.aljazeera.com/news/2019/06/explainer-hong-kong-controversial-extradition-bill-190610101120416.html (last visited Aug 24, 2020).

[12] Stanly Johny, What are the protests in Hong Kong all about?, The Hindu, Jun. 15, 2019, https://www.thehindu.com/news/international/what-are-the-protests-in-hong-kong-all-about/article27950931.ece (last visited Aug 24, 2020).

[13] “Hong Kong Watch, ‘Hong Kong Watch Patron Lord Alton Interviewed about the Passage of the Human Rights and Democracy Act” https://www.hongkongwatch.org/all-posts/2019/11/28/listen-hong-kong-watch-patron-lord-alton-interviewed-.

[14] Bernhard Harcourt, “Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory, and Order-Maintenance Policing New York Style” (1998) 97 Michigan L Rev 291.

[15] Shibani Mahtani, Timothy McLaughlin, Tiffany Liang, Ryan Ho Kilpatrick, “In Hong Kong Crackdown, Police Repeatedly Broke Their Own Rules – and Faced No Consequences: Leaked Law-Enforcement Manuals Contain Guidelines Often Ignored in Confrontations with Protestors.” (Washington Post, 24 December 2019) https://www.washingtonpost.com/graphics/2019/world/hong-kong-protests-excessive-force/.

[16] Lam says “radicals paralysing the city are selfish” (China Daily 11 December 12 2019) https://www.chinadailyhk.com/articles/65/29/205/1573526293315.html.

[17] Lily Kuo, “I’ll Take the Blow for Them: The Volunteers Protecting Hong Kong Protesters” (The Guardian 13 September 2019) https://www.theguardian.com/world/2019/sep/13/volunteers-protecting-hong-kong-protesters.

[18]  Amnesty International, “Hong Kong: Arbitrary Arrests, Brutal Beatings and Torture in Police Detention Revealed” (19 September 2019) https://www.amnesty.org/en/latest/news/2019/09/hong-kong-arbitrary-arrests-brutal-beatings-and-torture-in-police-detention-revealed/ ; Human Rights Watch, “De-Escalate Violence in Hong Kong” (16 August 2019) https://www.hrw.org/news/2019/08/16/de-escalate-violence-hong-kong.

[19] Ibid.

[20] Mary Hui, “The Hong Kong Protests Are the Most Live-Streamed Protests Ever” (Quartz 11 November 2019) https://qz.com/1737197/hong-kong-protests-are-most-live-streamed-ever/.

[21] Marc Tracy, Edward Wong and Lara Jakes, “China Announces That It Will Expel American Journalists” (New York Times 17 March 2020) https://www.nytimes.com/2020/03/17/business/media/china-expels-american-journalists.html?referringSource=articleShare.

[22] Joyce Ng, “Hong Kong Chief Executive Carrie Lam Accuses Anti-Extradition Bill Protestors of Organising a Riot” (South China Morning Post 6 December 2019) https://www.scmp.com/news/hong-kong/politics/article/3014250/hong-kong-chief-executive-carrie-lam-accuses-anti.

[23] Kris Cheng, “Hong Kong Gov’t Reveals hk$10bn Pension, Holiday and Transport Sweeteners; Denies Link to Recent Protests” (Hong Kong Free Press 14 January 2020) https://www.hongkongfp.com/2020/01/14/just-hong-kong-govt-reveals-hk10bn-pension-holiday-transport-sweeteners-denies-link-recent-protests/.

[24] Oxfam Hong Kong, “Hong Kong Inequality Report” (2018)  https://www.oxfam.org.hk/tc/f/news_and_publication/16372/Oxfam_inequality%20report_Eng_FINAL.pdf.

[25] Quinn Slobodian, “Democracy doesn’t matter to the defenders of “economic freedom” The Guardian (11 November 2019) https://www.theguardian.com/commentisfree/2019/nov/11/democracy-defenders-economic-freedom-neoliberalism.

[26] Keith Bradsher and Chris Buckley, “Hong Kong leader confirms unbending stance on elections” New York Times (20 October 2014)https://www.nytimes.com/2014/10/21/world/asia/leung-chun-ying-hong-kong-china-protests.html.

[27] “Ho, Jackson and Kong ; Raul Lejano, Ernest Chui, Timothy Lam and Jovial Wong, Collective Action as Narrativity and Praxis: Theory and Application of Hong Kong’s Urban Protest Movements” (2018) 33 Public Policy and Administration 260–289.

[28] “Interview with Chris Patten” bbc (24 June 1993) http://www.bbc.co.uk/otr/intext92-93/Patten24.4.93.html.

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