Jimmy Lai and Martin Lee are among seven activists convicted of an unauthorized protest, despite protections afforded to them by the Hong Kong Constitution. How does this precedent impact the power of the Hong Kong Constitution?

The Hong Kong Constitution is the Basic Law, which was promulgated by Beijing in 1990 for “one country, two systems” and promises free speech, rights to protest, rights to organize, among other rights. The National Security Law imposed on June 30th, 2020 completely abandoned the Basic Law because according to China’s legislation laws, a more specific and later law overrides a previous law whenever there are discrepancies. There are tons of discrepancies between the Basic Law and National Security Law. The National Security Law criminalizes rights to protest, lobbying foreign countries, and organizing primaries because they will be seen as a subversion of state power. Hong Kong used to be a city of protests but there is no more room for dissent. 

Martin Lee and others were arrested and convicted of “unauthorized assembly” on August 18, 2019 when about 1.8 million demonstrated peacefully. Before that, there were peaceful demonstrations of millions of people on June 9th and June 16th. Over the summer, the police began to refuse granting the “no objection” permit to protests in 2019.  People continued to protest — wildcat protests. On August 11th, the police were discovered for camouflaging as protesters to identify and arrest protesters. That encouraged the sentiment that violence does not work. At about that time, people began to throw molotov cocktails in addition to bricks and water bottles. After an entire summer of protesting, the police assumed that Hong Kong people would want to have stability and prosperity. On August 18, they granted protesters a permit to pass through Victoria Park, but protesters were charged for continuing the protest from Victory Park to the central government offices in Admiralty. There were 1.8 million people , even in the heavy rain for hours. That was the last massive peaceful demonstration. By convicting the people who led the march further, Hong Kong sent the message that there is no more dissent. The National Security Law claims that it only targets real troublemakers like those who were throwing Molotov cocktails and setting fire to train stations, but this is a case of people protesting nonviolently as usual, which tells us just how far the repression in Hong Kong has gone. In terms of whether or not it changes the Hong Kong Constitution, it already has changed such that the rights to peaceful protest are no longer protected. 

What are the likely effects of their arrests on the protests and democracy movement?

From day one, Beijing has wanted to make Hong Kong safe for the Chinese Communist Party (CCP) because the Basic Law was promulgated in 1990, a year after Tiananmen Square happened. In May and early June 1989, Hong Kong’s population at the time was 6 million, and 1.5 million people poured to the streets to support the protests in China. After the crackdown in China, Beijing began to reassess Hong Kong. 

Before Tiananmen, there were forward-minded leaders like Hu Yaobang, Zhao Ziyang, and Deng Xiaoping, but then the former two were both purged and Deng Xiaoping changed his mind such that he wanted reforms but also wanted to be sure that the CCP would be safe. It was in this environment that Basic Law was promulgated. While the Basic Law was supposed to implement a lot of those promises made in the Sino-British Joint Declaration in 1984, the Basic Law actually significantly deviated from those promises. This laid down the seeds for what has been going on in the last 30 years. The democracy movement in Hong Kong emerged from the Tiananmen movement because people realized that “Today’s Tiananmen could be Tomorrow’s Hong Kong.” Hong Kong did not have democracy but had freedom then. I have written and argued that for so long Hong Kong was the world’s only case of having freedom without democracy, but in 1989, those who organized the protest in Hong Kong understood very well that if Hong Kong does not have democracy, it would not be able to preserve its freedom. This is why the democracy movement was actually born at the time of Tiananmen.

At the same time, Beijing learned lessons as well. Hong Kong people have the freedom to protest against us, so Hong Kong must be made safe for the CCP. From day one when Hong Kong asked for democracy, Beijing was very determined to deny it, yet for three decades Hong Kong people continue to have the freedom to ask for democracy. This is why we have seen every step of the way Beijing denying Hong Kong its democracy. To illustrate, the Basic Law stipulates how the chief legislature should be chosen for ten years. This gave Hong Kong people the expectation that there should have genuine universal suffrage after 10 years. But in 2004, Beijing decided that they were not ready and needed to wait for another ten years. Then, when the next ten years came near in 2014, Hong Kong people organized the “Occupy Central with peace and love” movement to pressure the government to deliver the delayed promise. This was turned into the Umbrella Movement because Beijing issued another decision that allowed one person one vote only on the condition that the two to three candidates on the ballot had to be vetted by Beijing. Hong Kong people were outraged because this was like elections in Iran. This is why the Umbrella Movement’s rally cry was “We want genuine universal suffrage.” Every step of the way whenever Beijing denied suffrage to Hong Kong, it backfired so that more and more people poured out into the streets to demand democracy. 

After the protests in 2019, when the protests became so massive, the CCP started “Beijing’s Ultimate Solution” to the Hong Kong problem. The CCP does not want democracy in Hong Kong, but Hong Kong people have the freedom to ask for democracy, so the CCP’s answer is to kill those freedoms as well. The democracy movement in Hong Kong was born out of Tiananmen, now that we have Tiananmen in Hong Kong, the democracy movement is completely stifled. It’s not just the National Security Law or these arrests but Beijing has also passed “electoral reforms” to change Hong Kong’s electoral arrangement to make sure that no one in the opposition would get the slimmest chance. Historically, every time Chinese leaders talk about electoral reforms, it is always about strengthening state powers and weakening the society. Essentially there is going to be no more democracy.

Can you expand on what these electoral reforms look like? What will the vetting by the CCP look like?

On November 24th, 2019, there were district council elections. People used to pay very little attention to district council elections, so pro-Beijing candidates would always dominate. In 2019, though, before the district council elections, there was talk that Beijing was going to cancel those elections, but apparently the authorities were expecting Hong Kong people to cast their ballot for stability and against further escalation. Many of the candidates were not known politicians; many of them were very young and even some were just university students. They just wanted to make sure that there was some competition. They won in a landslide, which gave the opposition hope because they thought that if they could win district council elections, there was a chance that they could win a tight majority in the legislative council. 

However, the legislative council was already structured so that pro-democracy forces could not actually win the majority. For so long pro-democracy voices could only make noise, obstruct, and play filibuster. They could never propose and pass any legislation. Half of the seats were elected by geographical constituencies by direct elections and half of the seats were returned by functional constituencies. Some of these were broader like the education or medical sector, but the vast majority of these functional constituencies would go to Beijing-approved candidates. Pro-democracy people in Hong Kong, though, were hoping to win “35+1” seats to win a majority, so they organized primaries to avoid competing against each other and ensure pro-democracy candidates could win. After the primaries in July 2020, Beijing disqualified some of the candidates and very soon the entire election was postponed altogether. A few months later, on January 6th this year, the same day as the riots in Washington, all 53 of the people who were participating in primaries were arrested. 47 were charge and most have been denied bail. After all of this, Beijing thought that it was still not enough, so they introduced “electoral reforms.” First, the number of directly elected seats were reduced to 20, and they would expand the number of seats from 70 to 90, so those who were directly elected would automatically be in the absolute minority. Second, anyone who wants to run would have to get a nomination from each of the 5 sectors in the nominating committee, which are composed of the CCP organizations. There is no way that anyone could get nomination from all five sectors unless they are all pre-approved by Beijing. This is a fool-proof mechanism that anyone in the opposition would not get nomination to run, and even in the rare chance that they are nominated and win, they would be in the absolute minority. 

What, if anything, can be done in order to promote a step back towards democracy in Hong Kong? 

We have seen headings that say “Democracy is dead in Hong Kong,” “Freedom is dead in Hong Kong,” “The rule of law is dead in Hong Kong” because now that the police arrest people and the courts can be trusted to pass on guilty verdicts and heavy sentences to those charged. The most well-known and senior leaders of the pro-democracy movement in Hong Kong have just been convicted and sentenced to 8 to 18 months of jail terms. Judges are put in a catch-22. If they do not do what the authorities want, then the secretary of justice will appeal, and judges are conscientious that these national security cases can be transferred to mainland China. When people are locked up; in Hong Kong at least they do not get tortured. If local judges do not do what Beijing wants them to do, then, Jimmy Lai for example, could be transferred to mainland China and he would just disappear into a dark hole. No one would know what happened to him. For example, Andy Li was trapped and sent to Shenzhen. Now that he has served his sentence in Shenzhen, he has been taken back to Hong Kong but he is not allowed to choose his own lawyer. Given this, how do we keep up hope? It is true that the Hong Kong that we grew up with is gone, and Beijing is determined to kill Hong Kong’s freedom and democracy. There is very little hope there. Beijing also wants Hong Kong people to love National Security Law through patriotic education of the younger population. This is particularly dangerous because Beijing has successfully imposed Tiananmen amnesia on mainland China. They think that they can succeed in Hong Kong as well. Hong Kong people are keeping up dissent in subtle ways by refusing to forget and maintaining a sense of community. While Beijing can kill the freedom of Hong Kong, it is very difficult to kill the spirit and values that people hold onto in their hearts. If they refuse to accept the repression as the new normal, that is the way to keep the fight going. 

The National Security Law criminalizes collusion too because there are people leaving and there are exiles. Hong Kong people overseas are mobilized like never before. For example, the UK is giving special protection and path to citizenship for up to 3 million people, and the US, Australia, and Canada are going to pass special consideration and protection to Hong Kong people. While people inside Hong Kong cannot openly dissent and can keep the fire going in their hearts, those outside are speaking out. The struggle is not coming to an end. How much we can reverse what is going on in Hong Kong is difficult to say. Beijing does not worry about backfire because it keeps thinking that these Western democracies are dependent on China’s economy. However, the EU, for example, has decided that it cannot turn the other way on the genocide happening in Xinjiang. They have imposed sanctions on a few significant officials who are in charge of Xinjiang, and in return Beijing has imposed sanctions on a few parliamentary leaders and academics in the EU. In doing so, Beijing has killed the EU-China trade agreement. This shows that even though Western democracies cannot persuade Beijing to change, they can put pressure on China’s economy by further decoupling. China’s military, repressive, and soft power is a function of its economic power, so if China’s economy can be curbed, then that might give some hope for repressed populations.

Given the prominence of Mr. Lai and Mr. Lee in the movement, will their convictions influence international diplomacy between or pressure from Western countries and China?

When we can put faces to concerns of human rights, it makes a significant difference. Jimmy Lai, Martin Lee, and Lee Cheuk Yan are all internationally known pro-democracy figures. Once Martin Lee in particular was arrested last year on April 18th, people dug up what Prince Charles had said at the handover ceremony in 1997: that he would now leave Hong Kong to its own fate and would not want to live to see the day that Martin Lee would be put in jail. Now that has come true. As a result, the whole world’s attention is on these people because they have actually met these figures. 

On NPR this morning, the anchor said that he has interviewed Jimmy Lai before. He is so moderate; he is no revolutionary. He really just wants to preserve Hong Kong’s freedom. This has an impact. The Congressional Executive Committee on China has already nominated the Hong Kong democracy movement for a Nobel Peace Prize. The Norwegian parliament nominated Martin Lee for the Nobel Peace Prize. These nominations increase the profile and backlash of the repression and proves the lies that the National Security Law only aims at putting away troublemakers. When Hong Kong’s most senior lawyer is convicted, it tells us that the rule of law is dead and Hong Kong is dead because it was not supposed to end like this. 

China claims that these protesters are dangerous because they undermine China’s sovereignty by working with hostile foreign forces. To what extent, if at all, are there ties between pro-democracy activists in Hong Kong and external actors or organizations?

Beijing certainly claims that it is reacting to what Hong Kong people do. Let’s look at the Umbrella Movement which completely refrained from mobilization of foreign support. In fact, in November 2014, I testified in Congress but I was not one of the organizers, I am an American professor. During the anti-extradition protests, people learned lessons from the failure of the Umbrella Movement. First, every single known leader was arrested and convicted. Second, it was hard to defend occupation of busy streets. Third, they concluded that nonviolence does not work. Fourth, they needed to mobilize for international support. As such, in 2019, people began to crowdsource to buy ads in G-20 countries (except China) and protest at the countries’ representative offices in Hong Kong because there was going to be a G-20 summit by late June. In late November, Congress passed the Hong Kong Human Rights and Democracy Act. After this, Beijing added to the National Security Law criminalization of collusion.  

For Beijing, this mobilization for international support is interfering with internal affairs and infringing on China’s sovereignty. Yet, in 1984, Deng Xiaoping filed the joint declaration with the UN to show the world that he was serious about making those promises. They traveled around the world to convince foreign governments that they are going to honor their promises to Hong Kong people and that nothing would change except the flag. People asked, why 50 years? Deng Xiaoping’s response was that after 50 years, China would catch up to Hong Kong and there would be no need to protect Hong Kong from China. All of the talk about the international community infringing on China’s sovereignty, Deng Xiaoping started it. 

What do the results of these convictions and the new National Security Law mean for China’s relationship with Taiwan?

The Umbrella Movement broke out months after the Sunflower Movement in Taiwan, and they decided that Hong Kong’s fate is tied with Taiwan’s. With what was happening in Hong Kong, the Taiwanese no longer believed in the one country, two systems model which was specifically designed for Taiwan. Deng decided that they could wait on Taiwan and apply this model to Hong Kong first. Hong Kong was meant to be the showcase for Taiwan. After two decades, it became clear that it was not working in Hong Kong. This created the slogan, “Today’s Hong Kong. Tomorrow’s Taiwan,” which is a continuation of the slogan, “Today’s Tiananmen. Tomorrow’s Hong Kong.” As a result, activists from the Sunflower Movement and Umbrella Movement began to share experiences and strategies, like live-streaming. For example, at the time, there was not a single foreign correspondent in Taiwan, but when the Umbrella Movement broke out, every single international news organization had someone in Hong Kong, so it could be broadcast live. Before Taiwan’s general elections in January 2020, Hong Kong people in Taiwan went around with the slogan, “Save Hong Kong. Today’s Hong Kong. Tomorrow’s Taiwan”.

Most importantly, what is going on in Hong Kong is changing  US policy towards Taiwan. There is now an “unofficial delegation” to Taiwan, just while there is a formal delegation by Kerry to Shanghai to talk about climate change. The Senate foreign relations committee just passed a bill to completely reassess US-Taiwan relations and new regulations to allow more formal connections with Taiwan officials. We are seeing a formal upgrade with the US’ relationship with Taiwan because there are concerns that there will be an invasion of Taiwan, so the US is stepping up deterrence. The global backlash could ultimately stop further encroachment of freedoms in Hong Kong, but Hong Kong people have already paid a heavy price.