In the Ruins of Hong Kong’s Democracy

Sun funnelled down between the unit blocks and hotels of Tsim Tsa Tsui (Chim Sa Choi) as my wife and I disembarked from the Star Ferry from Central. We were heading to our tailor in Carnarvon Street. The ferry had been half full and mainly mainland Chinese passengers, given the amount of Mandarin being spoken. The mainlanders were definitely back in numbers for tourism and shopping. We had not returned to Hong Kong since we left in 2021 and were interested to learn of the effects of the new regime: the new chief executive, John Lee, approved by the mainland government, the National Security Law (NSL) pursuant to which streams of arrested democracy and independence protestors had been convicted and jailed over the last two years, and the revised electoral system which required candidates in Hong Kong elections to be approved by the executive as “patriots”.

At the last elections, in late 2019, the District Councils were elected by universal suffrage – the only elections in Hong Kong so elected. To be nominated for election candidates required the support of only 10 other voters from the relevant Council area. To the great shock of the Beijing-aligned elements in Hong Kong politics, the democratic activists succeeded in taking control of 17 out of the 18 District Councils for the 2020-2023 four-year term. Many of these politicians supported the extension of universal suffrage to the elections for the Hong Kong parliament, LegCo, an extension of the “one country, two systems” status quo for another 50 years, and independence of Hong Kong from mainland China, at least in time. The two have to go hand-in-hand because the only way that independence could be constitutionally achieved (though not without a confrontation with the CCCP) was if the members of LegCo voted for such a change. The District Council in 2019 elections clearly indicated the general population might vote to support democratic activist policies.

Alarm bells must have rung in Beijing, because after the July 2020 imposition of the NSL, in March 2021 the National People’s Congress decided to change Hong Kong’s electoral system. The new ordinances are intended to implement the principle of “patriots administering Hong Kong” and require candidates to obtain 50 voter nominations and 9 committee nominations from members of committees appointed by the government, whose contact details are not made available by the Electoral Commission. The constitution of every Council was also changed so that only 20 per cent of the Council are to be elected. Finally, candidates who did achieve the required nominations are reviewed by an Eligibility Review Committee appointed by John Lee, which in turns seeks an opinion from the Committee for Safeguarding National Security, drawing the electoral system into the purview of the NSL. Candidates will be disqualified if they do not declare to pledge allegiance to “HKSAR of the PRC”, or if they refuse to take specified oaths or have failed to fulfil conditions and requirements for upholding HKSAR of the PRC.

In November, a former civil servant, Democratic Party member and veteran administrative review litigant, Kwok Cheuk-kin, commenced a constitutional challenge to the new nomination requirements for candidates on the basis that it contravened the rights of residents to vote for candidates of their choice and the rights of residents to stand for election, as guaranteed by the Basic Law and Hong Kong’s Bill of Rights.

There was no discernible effect from all of this on the local people in the shops, malls and streets. On the MTR they gossiped away in light-hearted Cantonese and seemed happy and relaxed. The local Chinese population have always displayed an admirable mix of humility, work ethic and quiet pride. Crime is low, the efficiency in public services at a level never seen in Australia. They are not cowed, and they have an inner communal strength – an estimated 2 million of them (out of a 7 million population) marched through Central in June 2019 and their quiet indefatigable presence put an end to the amended extradition laws proposed by the former CE Carrie Lam (and her then Secretary for Security, John Lee). It is a something of a tragedy that the younger generation of democrats accelerated the protests into the campaign for “Five Demands, Not One Less” which persisted in a sometimes violent and destructive fashion, such that the mainland authorities imposed the NSL that overtly achieves what Lam’s regulations tacitly sought to do – the authorised removal of Hong Kong citizens for trial in the opaque legal system in communist China.

The MTR stations and trains in Kowloon displayed government posters emphasising harmony and strength in community, and a “Happy Hong Kong”. The government posters appeared in the streets and on buses and trains exhorting the citizenry to vote for a patriotic Hong Kong, meaning, of course, one that does not contemplate any real autonomy from the Communist regime. Not that there was much need for concern, because the new electoral rules had resulted in not one “pan-democrat” being nominated as a candidate.

The government has announced that 12,000 police officers will be deployed on election day to “boost security” and conduct anti-terrorism patrols. Cybersecurity officers will be monitoring online chat groups and social media to check for illegal marshalling of votes. One justification for these steps was that two men had recently been arrested in possession of “anti-government fliers”.

More sinister comments were made by the Secretary for Constitutional and Mainland Affairs, Erick Tsang Kwok-kai. Voting is not compulsory in Hong Kong and there is official concern that a poor turnout might itself be a vote against the new arrangements. The government had announced it would send thank you cards to all civil servants who voted in the election. When asked about whether this was intended to coerce civil servants into voting because it would be known whether they had voted by reason of whether or not they had received a thank you card, Tsang said:

Casting a vote of course indicates support, but not voting does not necessarily mean that residents do not support the election. They may have reasons for not voting…Some said civil servants should show the card as proof. We did not even think about it. We should not over speculate.

We did notice fewer ex-pats in the streets and shops and fewer European tourists. It is no surprise. My wife’s former job at one of the large banks, and many of the hundreds of positions around her in Hong Kong, have all been moved to the Philippines or Singapore. The tailors complained of a significant loss of business. They were glad that one effect of the changes was that US businessmen will not meet Chinese counterparts in the mainland but will arrange meetings in Hong Kong, throwing some business their way while there.

A friend who owns and runs one of the larger and successful veterinary chains in Hong Kong said the business had suffered from the loss of ex-pat pets. She also had trouble recruiting nurses with foreign qualifications and the business had started up its own veterinary nurse course for approval by the local authorities.

Down at the Foreign Correspondents’ Club and at other venues in Central the talk was more upbeat, for here were collected the people who have significant business and professional investments in Hong Kong and are committed for the long term, not merely by length of stay but many by reason of marriage into the local population. They are not really ex-pats, they are locals who are responsible for maintaining whatever financial status Hong Kong has into the future, despite the gibes of the China Daily from over the border that Hong Kong is falling behind as a financial hub in Asia. We were reassured: “The ex-pats are coming back”. Perhaps they are, but it’s a concession that many have left, and what is going on is a process of salvaging the best enterprises to lead Hong Kong into the future as a financial hub that is a partner of mainland China.

The government has also just been outraged when one of the democracy activists arrested in 2020, Agnes Chow, 27, breached her bail conditions by refusing to return from study in Canada to report to Hong Kong Police. Chow had already served 7 months for attending an unauthorised protest rally in 2019, but had been rearrested in 2021 due to a suspicion of “colluding with foreign forces” (an NSL offence), and though not charged, had her passport confiscated and placed on bail conditions. This week she revealed on social media that in order to regain her passport to travel to Canada she had been required by Police to provide hand-written letters of repentance for past political activities, vow to sever ties with former activist colleagues, and attend day trip to Shenzen escorted by Police to “learn about the accomplishments of the motherland”. The Executive Council disputed these conditions infringed her rights and said they were the price of being permitted to study overseas. The conditions are known to be common mainland practice but unheard of in Hong Kong.

The day we left Hong Kong the Court of First Instance handed down its judgment in Mr Kwok’s case, dismissing his constitutional challenge on the basis that the derogation from the “constitutionally protected” electoral rights caused by the new ordinances was reasonably balanced against the “societal benefits” of the nomination requirements. This resulted from the application of a “proportionality” principle, now much used by common law higher courts around the world when deciding constitutional cases, which pretend to a capacity to result in solutions determinable from the reasoned application of objective criteria, but which are often applied with subjective political considerations being given considerable weight. Justice Coleman’s reasoning made plain that the political aims of LegCo to exclude from the electoral participation people who were not patriotic and who fail to act in the best interests of Hong Kong and China were to be regarded as legitimate aims and a “large margin of appreciation” would be given to legislative provisions which reflect political judgments, the Courts being “generally not equipped to determine political questions”.

Justice Coleman did make some revealing factual findings, recorded for the world to see, that 75 per cent of the candidates for the 20 per cent elected seats were also members of the Council nominating committees, all therefore already unelected government appointees, who had simply all nominated each other. He commented: “As it turns out, the ‘gatekeepers’ have opened the gates mainly for themselves”. Furthermore, as the judge also pointed out, only the other 25 per cent of the candidates would be persons who were not already government appointed, so that ultimately only 5 per cent of the Council members would actually be elected. In other words, even if Mr Kwok had succeeded, the attempt to resist the undermining of democratic rights in Hong Kong was futile.

Matthew White SC is a Sydney barrister