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Fallout and damage control: Independence activist Andy Chan and Hong Kong’s free speech row

No sooner had Hong Kong independence advocate Andy Chan Ho-tin finished his August 14 speech and answered the last question than the expected thunderclap sounded in the northern sky. It came first from the Hong Kong office of China’s Ministry of Foreign Affairs and then, the next day, directly from Beijing itself.

The two statements are the strongest official sign yet that central government authorities are seriously displeased with Hong Kong’s Foreign Correspondents Club for hosting a talk by someone who has been elevated to the status of a national traitor. The Hong Kong office had asked the club to cancel Chan’s talk, but the FCC’s Board of Governors refused.

andy chan ho tin fcc

Andy Chan. Photo: Pool/SCMP.

The controversy left behind many questions. They follow especially from the threats targeting the press club itself, and from the political vilification of Andy Chan for daring to articulate the idea that Hong Kong should separate from China.

Questions also surround the unexpected second thoughts expressed by some ranking Hong Kong power players

The initial blast

According to the foreign ministry’s August 14 statement, Hong Kong is not a place outside China, and the FCC is not a place outside the law. Therefore, “we urge the FCC to repent and correct its wrongdoing, take concrete actions to abide by the related laws of China and of the Hong Kong SAR, and respect the feelings of 1.4 billion Chinese people… Any words and deeds attempting to separate Hong Kong from the rest of China will be punished by law. Any individual or organization’s move to embolden Hong Kong separatists will meet the firm opposition of the Chinese people.”

One evening news broadcast helped out with its own interpretation of the day’s main event, saying the FCC had been warned, in effect, not to make the same mistake again.

The next day Zhang Xiaoming, who heads the central government’s Hong Kong and Macau Affairs Council in Beijing, went further. Speaking to Hong Kong reporters, he said Andy Chan’s FCC speech revealed Hong Kong’s inadequacies in terms of the legal remedies available to prevent such an event.

Zhang Xiaoming

Zhang Xiaoming. Photo: TVB screenshot.

The Hong Kong government is currently in the process of banning Chan’s Hong Kong National Party (HKNP). But Zhang suggested more was needed. His implied reference was to the national security legislation mandated by Article 23 of Hong Kong’s Basic Law constitution.

The legislation aimed at criminalising treason, secession, sedition, subversion, and so on, was aborted after massive protests in 2003. Pressure is now mounting to try again.

Zhang said Andy Chan’s ideas and activities are seditious, and the FCC knowingly abetted his seditious intent by rejecting official advice to cancel his talk. But in the absence of a proper law to get the job done, Zhang suggested the government try using Hong Kong’s old updated colonial law against sedition.

He referenced the Crimes Ordinance, part I, section 9 that defines seditious intent as “bringing into hatred or contempt or exciting disaffection against… the Hong Kong government…” as demonstrated in acts and publications.

Adding weight to the pressure was the petition of 32 pro-government Legislative Councillors who held a press conference immediately after Andy Chan’s August 14 speech. They took their cue from former chief executive Leung Chun-ying’s campaign to deprive the FCC of its government-owned premises by raising the rent.

The legislators urged the government to consider not renewing the FCC’s seven-year lease when it comes due in 2023. They said the government should also think about breaking the lease ahead of time and evicting the FCC from the historic building.

The FCC had abused the government’s good-will by not respecting Hong Kong’s laws and by allowing the premises to become a venue for advocating Hong Kong independence. Hence the government had the right and the duty to act if the club continued to sponsor such events.

Scarcely a day has passed since then without someone raising the same demand. The former chief executive’s online campaign continues.

FCC Hong Kong

Photo: Tom Grundy/HKFP.

The gauntlet has thus been thrown down. Beijing made a demand the FCC had to refuse.  But what if they do make the same mistake again? What repercussions are likely to follow? Is it time for the Board of Governors to begin making contingency plans and start looking for a more tolerant landlord?

But then, what if they don’t make the same mistake again? What if they begin violating what is supposed to be the most sacred trust of the profession… press freedom, the public’s right to know? What if they bow to official pressure and do what almost everyone else with cross-border interests has long since learned to do – accommodate and acquiesce?

All it would take is for a few members of the board to say no, the next time someone gets a bright idea about inviting some local dissident on Beijing’s blacklist, of whom there are now many, to speak at the club.

No foreign-run organisation in China would invite Andy Chan to talk about Hong Kong independence. Does that mean the FCC must behave like every other such organisation in China? That would mean what the likes of Andy Chan have been talking about for years: Hong Kong becoming “just another Chinese city.”

But more important than questions about the FCC’s future are those about the legal ramifications, about how Hong Kong’s “inadequacies” can be remedied to prevent people like Andy Chan from having their say in a public venue.

Damage control on the legal front?

After Zhang Xiaoming mentioned it, legal minds naturally focused on Hong Kong’s Crimes Ordinance, but with surprising results. The most definitive conclusion came from veteran pro-Beijing loyalist Maria Tam Wai-chu.

Maria Tam

Maria Tam. File Photo: gov.cn.

Given Hong Kong’s common law tradition and past precedents, she said there was probably not enough evidence to show that Chan had enough influence over others to warrant a charge of sedition. Nor had he incited anyone to violence.

He has said in the past that violence would be acceptable if all else fails, but he now says he does not advocate violence. Tam said if it was left to the Crimes Ordinance alone, Andy Chan had not done enough to warrant prosecution.

Other legal authorities said much the same thing. Provocative words alone are evidently not sufficient. They must stir up enough discontent and disaffection among a significant number of people to provoke something concrete like public disorder and violence. Andy Chan’s valiant one-man effort has yet to register any such accomplishment.

In fact, even if Article 23 legislation as drafted in 2003 had been passed into law, Andy Chan’s speeches and pamphleteering would still not rise to the level that could permit the charge of sedition.

This was the view of Ronny Tong Ka-wah, who counted himself a democrat in 2003 but has now joined the government as a member of its Executive Council cabinet of advisers.

Despite all the sound and fury, Andy Chan is suddenly not even threatening enough to warrant prosecution under Hong Kong’s old Societies Ordinance, much less the shelved national security legislation. Still, if the 2003 draft was not good enough, what might the future hold? What to do about that Article 23 mandate?

andy chow ho-tin hknp

Andy Chow Ho-tin. File photo: In-Media.

Maria Tam said the way is actually already being prepared for Hong Kong via all the new cross-border initiatives. Beijing has not yet begun promoting the projects in this light. But it adds another dimension to President Xi Jinping’s new concept of “organic integration,” introduced at last year’s Communist Party Congress meeting.

So, national security is a calculation after all, just as some have suspected all along.

The new highspeed rail link is just one example. Democrats have been protesting against its construction for the past ten years, all to no avail. The new cross-border link is finally finished and due to begin carrying regular passenger traffic next month, with mainland law enforcement personnel stationed inside the local terminus, for the first time on Hong Kong soil. 

Regina Ip Lau Suk-yee carried the Article 23 national security discussion a step further during a TV interview last week. She was Secretary for Security in 2003 and her hardline sales pitch at that time was often cited as a major cause of the popular uprising against it.

Now a Legislative Councillor and a member of the Executive Council as well, she said the thinking about national security in 2003 was somewhat dated by today’s standards. The draft legislation had focused on the commission of violent acts as the standard necessary for prosecution.

Now, she said, there is much else to consider – cybersecurity had added a new dimension to the national security equation and there are many others if China’s new national security law is any indication.

Regina Ip mentioned the possibility of even newer dimensions, inspired by someone’s description of President Trump’s “treasonous” behaviour at the U.S.-Russia summit in Helsinki, Finland last month.

Who could have imagined a short speech at the press club by a minor player on Hong Kong’s political scene could have such dangerous far-reaching implications?!

Regina Yip

Regina Yip. File photo: GovHK.

But she also added something else to the equation, saying in fact, there is no need for anyone to be too alarmed. The 32 legislators’ eviction notice was just a political gesture. She herself had not signed their petition. She said forcing the FCC out of its clubhouse would damage Hong Kong’s much-valued reputation, earned by all the work they had done to accommodate the international media.

Her interviewer, Michael Chugani, repeated this sudden surprising concern about international public opinion in his column two days later. And so did Executive Councillor Ronny Tong in his column.

Of course, the real motivation for this new-found concern probably lies elsewhere. It seems Hong Kong’s bottom-line interests do not always dovetail with President Xi Jinping’s “red line” concerns about separatism and independence.

Two former high-ranking Hong Kong officials, out in the usual post-career speaking circuit, have just cautioned their successors to choose their words more carefully. Especially they should take care to emphasise Hong Kong’s judicial independence.

The former officials said there are now international “misconceptions” about Hong Kong’s legal system, so much so that some business people are advising colleagues not to take their legal disputes with mainland companies to Hong Kong for arbitration – a common practice so far – because of doubts about Hong Kong’s much proclaimed judicial independence.

Apparently, all the rulings against dissident politicians, with the attendant stories about prosecutorial discretion and judicial deference to the executive, have not gone entirely unnoticed after all.

But what about Andy Chan’s speech? 

The storm surrounding his FCC appearance generated far more interest than what he had to say. Beijing officials panicked prematurely. They should have left it to the press people to sort things out for themselves. Because if the questions asked and news reports written afterwards are any indication, the journalists were not particularly impressed.

Chan said beforehand that he was prepared for the usual “talking head” putdowns for his one-man crusade. And that’s essentially what he received.

fcc china flag independence

The Foreign Correspondents’ Club. Photo: HKFP.

Someone called it a “charade,” another questioner asked how much time he expected to spend in jail. The New York Times’ August 14 account concentrated on the controversy created by the talk, its venue, and the protests.

Only a few lines were devoted to Chan’s basic argument that democracy can only be achieved with independence because democracy means the people are sovereign, a concept that Beijing rejects absolutely.

CNN’s online August 14 report also focused on the controversy, not the speech, as did the Financial Times and the Wall Street Journal in their August 15 accounts. The Guardian relied on wire service copy.

Time Magazine in its two-part August 14 review was the most detailed and the most critical: “… the flames of Hong Kong separatism are not likely to be sparked by a man like Andy Chan… Neither has the charisma-free Chan made any substantial impression on the public or the media… Indeed, he appears unable to make a strong case for an independent Hong Kong. His prepared remarks at the FCC were very short on specifics, revealed a populist antipathy for mainland Chinese immigrants, and painted an apocalyptic vision of Hong Kong’s future in which the city’s identity is crushed by sinister communist apparatchiks.”

Steve Vines, a Hong Kong-based journalist and past FCC president addressed the “outrageous nonsense” provoked by Chan’s speech. But his irritation with the official protest was matched by impatience with Chan for leaving too many questions unanswered.

Among the questions were those about the fears of other less daring democrats that he is being used as an excuse to crack down harder on them all. Nor could he explain how his call for independence might succeed where all the other less-daring demands had failed, except to say their failure proved his point – true democracy cannot coexist with Beijing’s dictatorship.

goddess democracy june 4 tiananmen vigil victoria park

The Goddess of Democracy at Hong Kong’s annual Tiananmen Massacre vigil. File photo: Etan Liam, via Flickr.

Lost in the controversy over his right to speak was what he actually said. Andy Chan stands apart from others who count themselves democrats, only because he has deliberately pushed their dissent to its logical conclusion, for the reason he gives.

Not only can democrats not exist under Beijing’s one-party dictatorship, but the community has already begun treating his argument as the cause that must not be named and independence as the word that must not be spoken.

Ming Pao Daily’s August 15 editorial is a case in point: “Regardless of the FCC’s intention, its invitation to Andy Chan to give a talk… has definitely provided the independence movement with a chance to face the international community. This will definitely have political consequences and harm Hong Kong.”

Such self-imposed restraint is entirely understandable, of course, because it results from experience: legislators removed from the seats they won in 2016, candidates banned for “separatist” advocacies that do not necessarily include independence.

Fear has replaced the political freedom Hong Kongers thought they had won when their Basic Law constitution proclaimed the words and promises that are now being redefined, not by Hong Kong voters but by decision-makers in Beijing.

Andy Chan

Andy Chan Ho-tin. File photo: Facebook/Hong Kong National Party.

Re-considered in this light, Andy Chan’s FCC speech is an important summation of the grievances that can be heard here every day, but increasingly now only among friends, or in the privacy of small groups like his minuscule Hong Kong National Party. He hides names and numbers for a reason: there is a price to be paid if he doesn’t.

The foreign correspondents perhaps expected to hear a stirring manifesto, a declaration of independence with truths everyone holds to be self-evident and a road map pointing the way forward.

Andy Chan says he and his school friends were inspired by Thomas Paine whose 1776 pamphlet Common Sense made the convincing and compelling intellectual case for American independence.

Instead, what Andy Chan’s FCC listeners heard was something more like Paine’s rabble-rousing treasonous contemporary, William Cobbett, better known by his pen name Peter Porcupine in America.

Chan’s speech was a litany of the accumulating grievances that Hong Kongers can only stand by and watch but are powerless to redress. He was much criticized by his liberal listeners for comments about mainland migrants, one million since 1997, in a total population of about 7.3 million.

Hong Kong-Shenzhen border

Hong Kong-Shenzhen border. Photo: Wikicommons.

But the 150-per-day quota of one-way permit holders has long been one of the untended grievances, not just because of the numbers but because all decisions about who qualifies are made in Beijing, not Hong Kong, and no one knows if everyone is really joining families here.

The motivation is advertised as humanitarian but seen as another of Beijing’s integration strategies over which Hong Kongers have no say. And in all the local political disputes, mainlanders are seen as augmenting local loyalist forces rather than as potential new recruits for Hong Kong’s autonomous causes.

If by some stretch of the imagination the newcomers could be seen as pro-democracy sympathizers, resentment would doubtless dissipate long before the seven-year waiting time after which new migrants can qualify to vote in local elections.

Chief Executive Carrie Lam conducted her first live question-and-answer session a few days after Chan’s talk. Her appearance, like his, was streamed on FacebookAs it happened, the most frequently asked question for Carrie Lam, by 572 participants, was about the one-way permit scheme for mainland migrants.

But she gave only the standard official response. Family reunification is a basic human right, new migrants are an asset to the community, local opposition is due to “brainwashing” by social activists.

Fallout and damage control: Independence activist Andy Chan and Hong Kong's free speech row