REPORT 12.18.19 The New Battleground for Hong Kong’s Political Independence: Beijing’s Response to the Mask Ban Jackson Neagli, LL.M. Candidate, University of Edinburgh, Scotland The past nine months of protests in appearing to warn against party-state Hong Kong have elicited no shortage of retaliation.6 After violent protests on the condemnatory remarks from mainland 70th anniversary of CCP rule, Secretary China’s media outlets. Official responses to General Xi Jinping remarked that “Anyone the protests have tended to rely on tropes, who attempts to split any region from such as American “black hands”1 fostering China will perish, with their bodies smashed “color revolutions”2 in a bid to “challenge and bones ground to powder.”7 Despite Xi’s China’s sovereignty”3 or even “hurt the colorful remarks, however, Euro-American feelings of the Chinese people.”4 media coverage of Beijing’s response to the Much of this party media rhetoric has protests remained fleeting at best. been ignored by Euro-America media outlets It is notable, then, that a brief, and China watchers. This is understandable. Chinese-only statement on the protests Beijing seems to bring out the same from Zhang Tiewei, spokesperson of the jingoistic propaganda lines whenever Legislative Affairs Committee of the Standing the Chinese Communist Party (CCP) feels Committee of the National People’s Congress threatened, and given the current trade (NPCSC), elicited a strong and sustained war, the United States is an obvious target response from Euro-American China The NPCSC statement for party-state ire. The same rhetoric of watchers and reporters.8 The statement, constitutes Beijing’s “black hands” and “color revolutions” published on November 19 by Xinhua, most dramatic was deployed by the CCP propaganda China’s official state-run press agency, affirmative measure apparatus during the last round of pro- warned that a ruling by the Hong Kong High regarding the Hong democracy protests in 2014.5 By framing Court9 (CFI) overturning the Hong Kong pro-democracy protests as lawless riots government's ban on face masks at public Kong protests to date. fomented by evil foreign forces, the party- gatherings had “severely weakened” the state attempts to simultaneously discredit special administrative region’s capability to the protesters and their cause. This is part of govern, and asserted that only the central a broader strategy to mobilize public opinion people’s government is entitled to interpret along “us versus them” lines, which in turn Hong Kong’s constitution. aims to bolster CCP legitimacy through the The NPCSC statement constitutes “rally ‘round the flag” effect. Beijing’s most dramatic affirmative measure On occasion, Beijing’s propaganda regarding the Hong Kong protests to date. regarding the Hong Kong protests has This point has been widely acknowledged been shrill enough to attract Euro- by Western media, and merits sustained American media coverage. In early attention from Euro-American analysts. August, Beijing warned protesters not to This brief outlines the context, meaning, and “underestimate the firm resolve [of] the potential effects of the NPCSC’s November central government,” a cryptic message 19 statement. If enforced, the NPCSC’s BAKER INSTITUTE REPORT // 12.18.19 statement may signal the extension of legislature and July 16 march featuring unchecked central dictatorship over Hong nearly two million Hong Kongers, protesters Kong’s political apparatus. This drastic frequently wore masks to maintain their response to the CFI’s mask ban ruling—an anonymity and defend themselves from appealable decision regarding an ineffectual tear gas.13 After massive protests marred policy measure – demonstrates Beijing’s the 70th anniversary of CCP rule on October resolute determination to crush the Hong 4, during which the Hong Kong Police Force Kong protests, and indicates that the (HKPF) used over 1,400 canisters of tear gas stakes may be even higher than protesters in a single day and shot a student protester, previously thought. Lam promulgated the mask ban.14 When the mask ban went into effect on October 5, 24 members of Hong Kong’s BACKGROUND: THE PROTESTS legislative council applied to the CFI for judicial review of the executive ordinance. The statement in question was delivered The legislators’ petition, which was by the NPCSC in response to a judgment subsequently joined with another petition delivered the previous day by the CFI, in from a veteran activist, challenged the which two judges struck down an executive mask ban on six discrete legal grounds. ordinance issued by Hong Kong’s chief On November 18, Judges Godfrey Lam and executive, Carrie Lam, under the 1922 Anderson Chow published the CFI’s opinion, “Emergency Regulations Ordinance” upholding three of the six grounds raised by 10 (ERO). The effect of the ordinance, known the petitioners. It was this opinion to which formally as the “Prohibition on Face Covering the NPCSC responded the next day. Regulation” (PFCR) and colloquially as the Between the filing of the petition and “mask ban,” was to prevent individuals from the CFI’s decision, the mask ban was widely wearing face coverings to public meetings, ignored. The recent sieges of the Chinese and requiring that individuals wearing masks University of Hong Kong and Hong Kong remove them if a police officer so demanded. Polytechnic University15 make it clear that Lam had implemented the mask ban the mask ban did little to disincentivize following several months of unrest related protesters in general, and nothing to prevent to the HK government’s attempt to pass them from wearing masks in particular. sweeping extradition legislation earlier this year. In February 2019, Hong Kong’s government announced its intention to LEGAL HISTORY amend Hong Kong’s extradition law in a way that would allow for case-by-case To fully grasp the implications of the CFI’s extraditions to mainland China. Fearing ruling, and the potential ramifications of the exposure to a legal system where conviction NPCSC’s subsequent statement, a quick legal rates are upwards of 99%, and Stalin-esque history lesson is in order. forced confessions remain commonplace, Hong Kong was a British colony until thousands filled the streets of Hong Kong in 1997. In 1984, the British and Chinese late March to protest against the proposed governments agreed to the Sino-British bill.11 The protests rapidly escalated as Lam’s Joint Declaration, which stipulated that government refused to back down from its Hong Kong would be restored to Chinese pro-extradition position, and Lam withdrew sovereignty on July 1, 1997, with several the bill in early September.12 important conditions. Section 3(3) of the joint declaration guaranteed Hong Kong’s right to maintain an independent judiciary, THE MASK BAN and stipulated that “laws currently in force in Hong Kong will remain basically Throughout the protests that led to the unchanged.” Section 3(1), however, required withdrawal of the extradition bill, including that Hong Kong’s territorial status as a the July 1 storming of Hong Kong’s “special administrative region” (HKSAR) of 2 THE NEW BATTLEGROUND FOR HONG KONG’S POLITICAL INDEPENDENCE: BEIJING’S RESPONSE TO THE MASK BAN the People’s Republic of China (PRC) was Kong judiciary, and enshrines the Hong subject to Article 31 of China’s constitution, Kong courts’ ability to interpret their own which in turn states that “The systems constitution. Article 160 allows the NPCSC to be instituted in special administrative to determine whether or not pre-existing regions shall be prescribed by law enacted laws contradict the Basic Law. by the National People's Congress (NPC) in The NPCSC has utilized its powers the light of the specific conditions.” The under Articles 158 and 160 of the Basic broad language of Article 31 is characteristic Law, and more broadly Article 31 of China’s of Chinese legislation, and appears to be constitution, to influence Hong Kong’s designed to afford the NPC, China’s party- judiciary on several occasions since 1997.16 dominated rubber-stamp legislature, the In 1999, the NPCSC effectively overruled a widest possible latitude to control its special Hong Kong Court of Final Appeal decision administrative regions. regarding the right of abode for children When sovereignty over Hong Kong of permanent residents, siding with the was formally transferred from the United CCP’s handpicked chief executive over the Kingdom to the PRC in 1997, the “Basic Law” “independent” judiciary.17 In 2004, the replaced the colonial Letters Patent and NPCSC issued an unprompted interpretation Royal Instructions as Hong Kong’s effective of two annexes to Article 45 of the Basic constitution. The Basic Law continues to Law, governing electoral reforms that would serve as the touchstone of Hong Kong’s ensure universal suffrage in the election effective legal system. It confirms that Hong of the SAR’s chief executive.18 Despite Kong will continue to have an independent the absence of a request for guidance (as The NPCSC has utilized judiciary (Article 2), and that laws previously required by Art. 158 Basic Law), the NPCSC its powers under in force in Hong Kong remain in force to interpreted the annexes so as to snuff the Articles 158 and 160 the extent that they do not contravene Basic Law’s guarantee of universal suffrage. of the Basic Law, and the rest of the Basic Law (Article 8). Article In the 2011 Hemispheres case, a Hong Kong more broadly Article 31 19 complements Article 2, stipulating that Court of Appeal decision was overturned HKSAR will be vested with independent by the Court of Final Appeal after the CFA of China’s constitution, judicial power. Article 85 expressly indicates requested an interpretation from Beijing to influence Hong that Hong Kong’s courts should operate free regarding Hong Kong’s sovereign immunity Kong’s judiciary on 19 from interference, a narrower application of standard.