National Security Law Expert Fu Hualing: Whole Society to Pay If Relying on Courts to Solve Political Matters
Co-translated by AH and Karen Leung, written by Tsang Hiu-ling (printed on 3 May 2020 on Ming Pao)
Original: https://news.mingpao.com/pns/%e5%89%af%e5%88%8a/article/20200503/s00005/1588444459382/%e5%9c%8b%e5%ae%89%e6%b3%95%e9%81%94%e4%ba%ba%e5%82%85%e8%8f%af%e4%bc%b6-%e4%be%9d%e9%9d%a0%e6%b3%95%e5%ba%ad%e8%a7%a3%e6%b1%ba%e6%94%bf%e6%b2%bb%e5%95%8f%e9%a1%8c-%e6%95%b4%e5%80%8b%e7%a4%be%e6%9c%83%e4%bb%98%e4%bb%a3%e5%83%b9
The Core Value of Article 23 is against Secession
Named after the 2017 conference 'China's National Security: Endangering Hong Kong's Rule of Law?' launched by HKU Centre for Comparative and Public Law, the book included Professor Fu Hualing's article (titled 'China's Imperatives for National Security Legislation'), which, as its name suggested, probes China's desperation to enact a national security law.
The year 2017 marked the 20th anniversary of the transfer of sovereignty over Hong Kong to China; President Xi Jinping gave a speech in which he stressed the importance of “One country” in “One Country, Two Systems”, saying that, “'One country' is like the roots of a tree. For a tree to grow tall and luxuriant, its roots must run deep and strong. The concept of 'One Country, Two Systems' was advanced, first and foremost, to realise and uphold national unity,” and that “Any attempt to endanger China’s sovereignty and security, challenge the power of the central government and the authority of the Basic Law of the HKSAR or use Hong Kong to carry out infiltration and sabotage activities against the mainland is an act that crosses the red line, and is absolutely impermissible.” From there, Professor Fu who specialises in constitutional law, legal institutions, and human rights with a focus on China explained the existence of Article 23 in the context of China politics and Hong Kong's constitutional framework for the legal system, and he said, "While Article 23 mentions prohibiting acts of 'subversion' and 'secession', I think the core is more about the latter."
The Systematic Legalisation of Power
“To CCP, the connotations of national security have two aspects—politics and nationality. The ferment of such issues regarding the former translates to the subversion of the CCP-led socialism, of which I wouldn't regard as a big concern in the party's point of view.” Hong Kong is known to have a tradition of being the “base of subversion”, from Sun Yat-sen's revolutionary campaign to overthrowing the Qing dynasty, to the strategic transportation hub in the Chinese Civil War, followed by the surge of political refugees from mainland China between the 1960s and 1970s. “Hong Kong has long been considered a place for subversion. It was, during the Qing dynasty and the Republic of China, acting as a haven for the resistance.” Fu believed that the CCP understands well the denunciation it received from Hong Kong, “Socialism isn't mainstream in the global world after all; the criticism over the system has never ceased to exist.” Yet, the alert of “secession”, as he pointed out in the article, differs from that of “subversion”, for the reason that it interconnects with the matter of “nationality”. CCP premises its political logic on the historical burden it inherited—to maintaining territorial integrity—and on that account, the talks surrounding Hong Kong independence since the Umbrella Movement agitate Beijing the most.
The Target of Article 23 IS “Hong Kong Independence”
From CCP's standpoint, the main threat to national security is “the infiltration of external forces”. Starting from 2013, Weiquan lawyers and activists [Translator's note: “Weiquan” is a non-centralised movement in mainland China that seeks to protect and defend the civil rights of the citizenry through litigation and legal activism; some translate as "right activist.] have been prosecuted in rapid succession. In 2015's 709 Crackdown, on the charge sheets were repeated emphasis on their alleged affiliation with organisations in Hong Kong and foreign countries, as well as the foreign-aid funding they were said to receive. In an attempt to unravel CCP's timeline on the course, Fu mentioned that it was in the same year of the nationwide crackdown when the Standing Committee of the National People's Congress (NPCSC) adopted the new national security law. One by one, the Counterespionage Law, Cybersecurity Law, Foreign NGO Law (so as to regulate their activities in mainland China) and Counterterrorism Law have been implemented since Xi Jinping assumed office, of which Fu commented, “The institutionalisation and legalisation of CCP's power are unprecedented. At no time was its power demonstrated through legal measures; the Xi regime's approach is rather definite.”
Thenceforth the path of Hong Kong and that of mainland China intersect. In 2018, under the Societies Ordinance, Hong Kong government banned the operation of the Hong Kong National Party. In Fu's understanding, Beijing has recognised it an opportunity to enact Article 23 as this imaginary enemy (aka “Hong Kong independence”) arises. Fu added, “The then attempt (the National Security Bill 2003) was a symbolic gesture: The Central Government of China said to give it a go, so Hong Kong government gave it a go; the people in Hong Kong didn't turn out to be pleased with it, so they accepted the result and withdrew it. Now is different, the bill serves an actual purpose for Beijing—Those advocate independence shall, from now on, be punishable by the Article. That's the clear target.”
Has the Perfect Timing for Legislation Passed?
“In a sense, perhaps we should reflect why we were to reject the bill, and if such a move we made was right.” Fu added, “I personally felt that the wordings of the withdrawn bill were perfectly inclusive. The offence of subversion, for instance, had had enough measure to safeguarding the interests of defence on every single detail. We could either exclude the bill from the system or... Let's just say, further adjustment was not much needed.” Now that the police citing the dust-laden section 9 (seditious intention) and section 10 (offences) of the Crimes Ordinance, both of which have not been exercised for 68 years, Fu said, “The step next is to see whether the Department of Justice and the Courts will accept this. If yes, it will pose a much greater challenge to Hong Kong's rule of law than Article 23 of the Basic Law. In this case, we might as well have the latter.”
“The Law of our society is not ideal as some people deem to be. Refinement should have been made long ago; in retrospect, it would have been a better time to do it back then than now.” Fu went on to say, “A huge restriction on freedom of speech or freedom itself was it (the 2003 draft of Article 23) generally perceived. But at the same time, none of the thoughts and alterations was intended for some of the harshest provisions adopted from the colonial times.” He envisaged that if only with physical violence were to be guilty of an offence regarding seditious intention, “many people would not have been convicted.” After 17 years, once again the enactment of Hong Kong's controversial national security law is on the table. How should the starting point and the bottom line be this time around? To answer the question, Fu indicated the feasibility to use the 2003 draft as the basis, while he said, “It depends where our persuasiveness lies in the end if we are to demand higher threshold of conviction from the Hong Kong government or the Central Government of China, and to convince them to relinquish such convenient and effective governing tool.”
The Criteria for the Offence of Secession
“Setting side by side our existing laws and a new one, I would prefer the former as a more beneficial way to maintaining the intactness of Hong Kong's legal system, especially on the protection for freedom of speech.” Fu continued, “What worries me most about such a new law is the uncertainty over the offence for succession. Back when 2003, it was stated the acts of which resisting the Central People's Government in its exercise of sovereignty over a part of the People's Republic of China “by force”, “threat of force”, or “other serious unlawful means” would make an offence, whereas in today's circumstances, as to whether or not the previous requirements fit, I'd rather not say.”
Dialogue over fights on Solving HK's Predicament
Fu examined in his article the relationship between the Basic Law and the Constitution of the People's Republic of China, “The Basic Law is not a part of the Constitution of the People's Republic of China, but it is clear to have been mandated a special constitutional status.” Today, in addition to the controversy over the re-introduction of Article 23, there is a heated debate on the interpretation of Article 22.
Does the Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region (LOCPG) fall under the description “department of the Central People's Government” written on Article 22, which is specified to have no authority to “interfere in the affairs which the Hong Kong Special Administrative Region administers on its own in accordance with this Law.”? LOCPG repudiated the framework, and asserted to have supervisory power over Hong Kong, to which Martin Lee Chu-ming, the “grandfather of democracy” said the late Lu Ping would have bitten its head off, whereas Teresa Cheng Yeuk-wah, Secretary for Justice, sided with the LOCPG, and said that the office represents Beijing in Hong Kong not as a form of “central government department”.
“That should not be the focus of the discussion,” Fu commented, “The key is not whether the LOCPG is bound by Article 22. The key is to clarify what they could do or say on certain issues, and in which sense it is interfering, and in which sense it is supervising.” He elaborated, “Be the LOCPG a department defined by Article 22 or not, it does not change the fact that it is assigned by the Central People's Government, namely that it represents the Central People's Government. The Hong Kong and Macau Affairs Office of the State Council and any other institutions under the Central People's Government, as well, apply to the same implication. What's on point is whether their speeches and actions fall within the framework of the Basic Law.”
The Regime's Self-restraint
Since the NPCSC has the power of final interpretation of the Basic Law, doesn't it inherently spell the “settlement” of the dispute? “Not entirely so. The Central government has the say, but this doesn't necessarily end the case.” Fu argued that such issue is not to be explained on a legal ground, and it largely depends on the regime's self-restraint, “It involves the relationship between the Central government and the province. To Beijing, it is a matter of self-restraint. That is to say, we are not, in any way, allowed to force the process, meaning that a compromise from the Central government through legal means is not accessible. Any variation concerning the positioning of the regime is only affected by the political economy of the global environment.”
When asked wouldn't it be crying for the moon to anticipate the regime's self-restraint, Fu's advise was to “be realistic”. “The Basic Law is formulated not by us citizens, Hong Kong itself or the UK, but the National People's Congress, which equals China's sovereignty. Bearing in mind of this fact, we'll realise many such issues arise merely as the political ones.” He then added, “There will be some price to pay if any regime is to disrespect its own law. The question now is whether it is willing to pay the price and weather the aftermath.”
“One Country, Two Systems”, in Fu's views, is still alive. “The Central government has made it clear that 'One Country, Two Systems' is a mandate, and thus it is in its power to withdraw it,” he continued, “In a sense, it suggests that the future of Hong Kong will still be in our hands.” What is within our grasp? “The very concept of 'One Country, Two Systems' is established as it provides China with value. I believe it serves as a viable direction or model for China's future development. Many ethnic Chinese, including the vast majority of mainland Chinese, consider it a worthwhile pursuit for China. If China is not to adopt the Western model of separation of powers, then where should it go? The existing structure of China's system has got to evolve. It wouldn't be possible to stay the same forever simply because there's no practical solution to the predicament of internal regime change.” Fu added, “I wouldn't say 'One Country, Two Systems' is a lost cause. Some of the mechanics of political system design in Today's Hong Kong is still very much a useful reference for mainland China. I guess Hongkongers would be more likely to disagree with the practice of the constitutional principle in question than the mainland Chinese.”
In 1989, Jiang Zemin, the then Chinese President, once used the analogy “river water and well water should not mix”. [Translator's note: It was to indicate that the Chinese socialist system should not be subjected to subversive interference from Hong Kong, especially pro-democracy activities, and China would also not interfere in Hong Kong's political system.] Fu thinks the times are “long over”, and holding dialogues is the only way out. “Generally, the key to resolve the argument over constitutional theories is by 'dialogues'... The judiciary have 'dialogues' with the legislative branch of government, and vice versa: Legislators would picture how the Courts perceive the proposed bills and adjust the draft so that it isn't of no avail; the Judges would picture the implications to the LegCo if they are to declare certain laws as invalid.” Applying this to the relationship between China and Hong Kong, “Perhaps Hong Kong Courts and the NPCSC are alike, both constantly trying to avoid complications that might have arisen when exercising its own power, hence creating self-constraint of power and constructive dialogue in the process. It's like playing chess—strategising by thinking a few moves ahead.”
“Being Able to Maintain the Status Quo is a Blessing Already”
In 1983, Fu graduated from Southwest University of Political Science and Law, one of the most prestigious law schools in mainland China (alumni including Zhou Qiang, current president of the Supreme People's Court, the equivalent of China's chief justice.) He received his Master's degree from the University of Toronto in 1988 and his Juris Doctorate five years later from Osgoode Hall, a century-old renowned law school in Canada.
“My views differ from those of my colleagues,” Fu explained, “I have the greatest respect for them. Perhaps they think I'm setting the standard too low, but my understanding of the situation refers to my background.” He then continued, “Another reason is I'm a bit too realistic. For all, I think, being able to maintain the status quo is a blessing already.”
In terms of the rule of law, Fu is more optimistic than his colleague Benny Tai Yiu-ting. Comparing the disqualifications of lawmakers and the sentencing of Occupy Central leaders, Fu thinks that the Courts “had no other choice than to disqualify” after Beijing gave its interpretations of the Basic Law. However, though Beijing wanted severe punishments for the Occupy Central leaders, the judicial system in general, and the Court of Final Appeal in particular, still showed its independence and defiance and willingness to embrace liberal values… and to view Occupy Central as similar to acts of civil disobedience seen in other places with democratic systems”. It seemed that the Court of Final Appeal held the view that protesters and their leaders are worthy of sympathy and lenience, as long as the protests do not involve violence.
Too Much Political Responsibility on Judges' Shoulders
Nowadays, when the prosecution and the police are both on the government's side, many people wonder if justice can still be done. “This is the biggest problem in Hong Kong, which leads to the real worry for the future of the Law. We have put so much weight on the shoulders of judges, who are also human beings. It's not very fair to the Court for one to put all the political responsibility on the judges' shoulders and impute the unsatisfactory outcome to them. The series of events about disqualification is a case in point: Why didn't the Chief Executive or the then President of the Legislative Council take any action? With that much power, they did nothing and let all the responsibility fall on one judge. In fact, they were passing the buck in such a mindset: No one could solve it anyway, just let the judge do the job. So long as the judge decides, we will execute.” On top of that, legally speaking, Fu pointed out there is a price to pay for civil disobedience.
How did Fu see the role of judges from the Lennon Wall stabbing case in Tseung Kwan O? “Judges do have their own personal feelings. It's possible for them to sometimes mingle their political stance to the verdict. Whatever the system is, there will be bugs, errors, mistakes, and it's acceptable as long as there is room for correction. Rather than saying that the whole system is broken when one mistake is discovered, it's more preferable to deduce whether the entire system is still trustworthy.”
“Given Hong Kong's system, it's unlikely for the Court to decide that a person's not guilty out of noble intentions.” Fu supposed that pushing the Courts to the forefront of solving political problems will result in unfavourable consequences for the whole community to bear. “With the element of violence in the movement, participants are expected to face criminal liability. Considering that a fair appreciable proportion of the people have taken part in it, the entire community, together, will suffer—the Courts are up against the upcoming waves of challenges over its credibility and the possibility of losing people's trust.” Fu reminded, “It is to be noted that by the time famous figures like Martin Lee Chu-ming and Margaret Ng Ngoi-yee go to court, it is the complete political system which stands trial, not only them. Nobody has hoped for such a condition. All of them had tried to evade this political backdrop, and it is a tragedy for our society that it inevitably caught them.”
There is an unhealthy tendency to deify Laws and legal systems in us, Fu said, “The law is, in fact, a conservative, backward mechanism that only gives people basic protection provided that it can smoothly function.” As a native of Anxiang County in Hunan Province, he grew up in a rural village which “cannot be found on a map”. Having lived through the Cultural Revolution, he initially believed that “society can be changed through laws”. “A lot of us assumed the reason mainland China had the Cultural Revolution was that there was no rule of law, and conversely, with the rule of law there would be no Cultural Revolution. It was a naive conclusion. The truth is it was the lack of any concept of democracy that contributed to the Cultural Revolution.” Fu then expressed the way he approaches the law now, “Where the law can play its role uninterrupted, there is a fine system. It is good enough to have room to perfect the legal system itself; it is good enough to be able to solve problems in the relationships between individuals, maintain a balance between economic development and citizens' livelihood, keep the government rule within bounds, through the legal system. But let's not forgive that the law is under politics, and constructed by the politics. It is not very practical to think that one can change the way politics works.”
After Dr. Li Wen-liang's death, he participated in the joint signature petition of the open letter titled “Only Change is the Best Remembrance for Dr. Li Wen-liang - A Letter to the National People's Congress, the State Council and Compatriots of the People's Republic of China”, in which he and a group of mainland scholars put forward six major demands, including the comprehensive reviews of domestic and foreign policies in recent years, of party-government relations, of government-public relations, of government-business relations, of Taiwan–Mainland China and Hong Kong-Mainland China relations and of US-China relations. Throughout the interview, Fu managed to strike a balance, without exception, by adding the angle of neutrality. He said that in hindsight it might have shown that the system of mainland China “has its own advantages” for its more effective ways in fighting the epidemic than the democratic countries, however, “The mainlander public outcry is not to be ignored, which offers a glimpse of their thoughts: The people, when being put in a critical moment, do recognise what the real problem is. Still, in the their minds, there is a yardstick for measuring the good or bad of the government.”
Oust the Democracy alongside the Rule of Law
From the beginning to the end of the interview, Fu reiterated that an Article 23 and all social dilemmas must rely on the solutions achieved by the means of dialogue. He described himself a conservative, and said, “Benny (Tai Yiu-ting) considers it impossible for the rule of law to survive without democracy (Tai once referred the rule of law in Hong Kong as a zombie, and compared democracy to the one serum that can turn the zombie back to normal.). I tend to think that this is arguable. The worst that could happen is when the democracy is not acquired to the equation and at the same time the rule of law is out of the game.”
Under what circumstance would you determine that the rule of law is demolished? Taking a deep breath, Fu lowered his voice rather unconsciously as if he was visualising that particular moment, “Perhaps it'd be an instinct come by a certain verdict or decision... in a relatively slow process. The day when the international community gave up on Hong Kong would basically be it.” More concretely, he went on to say, “Big companies moving out of Hong Kong. Evident political control in an overwhelming manner... When the embodiment of 'rule of law' is no longer upheld within the law, but out of it. Just as birds take flight before the earthquakes even happen; that's the best sign for human beings.”
Hasn't the time come? “Not yet,” Fu continued, “I'm confident still that the rule of law is of importance to China, not so much in terms of how much the principle has been delivered by the government, but that it is essential to maintaining the country's socio-economic well-being in the long run. The regime allows the rule of law not out of love, but out of its indispensability; that, at least, the regime has awareness of.”
