Article 23 is the Key to Hong Kong's Protest Deadlock
By Zikai Guo
Fume, fire, bows and arrows – no, you are not on a battlefield, but in Hong Kong, a city known as the “Pearl of the Orient” and once regarded as the embodiment of human prosperity. Since June 2019, however, turmoil stemming from large-scale protests has paralyzed this autonomous city of China, with no end in sight. At this point in the standoff, it is worth exploring the key to opening the deadlock: Article 23 of the Hong Kong Basic Law.
The protests, first labeled as “pro-democracy” and then “anti-government” by the media, started in March 2019 after a Hong Kong man named Chan Tong-kai murdered his girlfriend in Taiwan and fled back to Hong Kong. According to Hong Kong Law, Chan can only be charged with murder back in Taiwan. Lacking an extradition agreement with Taiwan, the Hong Kong government only prosecuted Chan for money laundering. Following this event, the government drafted the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation Bill, popularly named the Extradition Bill, to fix this judicial loophole.
The Hong Kong government sparked outrage when it included all regions of Greater China (Taiwan, Macau, and mainland China) in the extradition bill. People took to the streets in protest, since there was a belief that the bill would allow the extradition of anyone in Hong Kong who breaks the law of mainland China back to China – viewed by protestors as a draconian government with a poor record on human rights, democracy, and freedom. Even though the Legislative Council of Hong Kong had included eight exemptions from extradition, one of which was "political crimes," protests still rocked the city and quickly turned violent as police clashed with demonstrators. Even after the government formally withdrew the extradition bill in September, the protestors refused to disperse until their new “Five Demands,” including “double universal suffrage,” were met.
To understand the “Five Demands,” it will be helpful to look at the history of the city. Hong Kong became a British colony after China ceded Hong Kong following two defeats in the mid-nineteenth century. In 1898, British control of Hong Kong was extended with a 99-year lease agreement between China and Britain. British governance led to historic developments in Hong Kong, which went from a small fishing village to a metropolitan financial center. According to multiple international rankings in 2019, Hong Kong leads over many other developed countries in terms of freedom, safety, financial services, and education.
Fifteen years before the end of the lease agreement, China and the UK began the negotiation process for the handover of Hong Kong. In 1984, Prime Minister Margaret Thatcher signed the Sino-British Joint Declaration with China. The declaration stipulated that China would resume sovereignty and administration of Hong Kong on July 1, 1997, with a promise to retain the “one country, two systems” framework for 50 years. In 1990, China adopted the Hong Kong Basic Law, the de facto constitution of the region.
When the Basic Law went into effect in 1997, Hong Kongers were skeptical. Many local residents were anxious to see how it would be implemented, especially the universal suffrage portion. This was a political right the British never gave them. Why should they trust China to follow through? Universal suffrage became the buzzword, drawing attention away from other important portions of the Basic Law, particularly Article 23.
Article 23 of the Basic Law states that Hong Kong "shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government." This article is considered the key legal component of the “one country” ideal. In 2003, the Hong Kong administration proposed a bill to the Legislative Council, aimed at codifying Article 23 into the existing law system via amendment. Seen as a subversion of democracy, the proposal caused extensive demonstrations and was withdrawn.
Despite a lack of progress from Hong Kong on Article 23, there was some movement on legislation for universal suffrage. Currently, the Chief Executive is selected by a simple majority by the Election Committee, which is comprised of 1,200 local people of different professional backgrounds. All the Chief Executives since 1997 have been pro-Beijing leaders. The Hong Kong government, with support from Beijing, made three proposals in 2005, 2010, and 2015 to move toward universal suffrage. Importantly, in 2014, the Standing Committee of China’s National People’s Congress backed the idea that Hong Kong’s Chief Executive could be elected by popular votes starting in 2017, in a resolution known as the “8.31 Decision.”
Close scrutiny of the proposals, however, showed major hurdles to attaining direct universal suffrage. Rooted in the Basic Law, the proposals had a nominating committee for Chief Executive candidates with “broad representation,” which in practice would still allow China to block an anti-Beijing Chief Executive through stacking the nominating committee. This means Hong Kongers can only elect their Chief Executive from a group of pro-Beijing candidates. As a result, the pro-democracy camp in the Legislative Council denied the proposals of 2005 and 2015, showing their determination for direct universal suffrage. People in Hong Kong started a series of street demonstrations requesting direct universal suffrage. Electoral system reforms have been shelved since then, and the incumbent Carrie Lam was elected in 2017 under the old framework.
While it is easy to accuse China of infringing the autonomy of Hong Kong, the fact is that the Sino-British Joint Declaration and the Basic Law of Hong Kong were never breached regarding the election mechanism. Furthermore, it has always been clear that without the precondition of "one country" secured by Article 23, there can be no movement towards the envisioned "two systems" that would open the door for direct universal suffrage and a pro-democracy, or even anti-Beijing Chief Executive or Legislative Council. Therefore, no matter how long the protests last or how boldly the city's government responds, the deadlock will persist until progress is made on Article 23.
It is not only the right move, but also the perfect time to resume work on Article 23. In the district council elections on November 24, the pro-democracy camp soundly defeated the pro-Beijing candidates and secured about 120 seats on the Election Committee. After the election results, the protests subsided into more peaceful ones. Therefore, there is an opening for the Hong Kong government to give a straightforward response to the “Five Demands,” especially if there is an independent committee established to investigate police conduct. This dialogue could lead to tangible reforms of the electoral system in tandem with codification of Article 23. Protestors should recognize the value of Article 23, particularly its power to influence public opinion at home and abroad.
Zikai Guo is a Master of International Business candidate at the Fletcher School of Law and Diplomacy at Tufts University. He is from Suzhou, China and currently working as an Individual Consultant at United Nations Population Fund (UNFPA) in New York.
“20190714 Hong Kong Shatin anti-extradition bill protest” is licensed under CC BY 2.0
Courtesy of Studio Incendo / Flickr
