“Arise, ye who refuse to be slaves!”
In one of the great ironies of history, this call to resist enslavement presents the greatest threat to freedoms in Hong Kong today.
This clarion call is the first line of the national anthem of the People’s Republic of China: a song that is supposed to inspire national pride, but which has in recent years been repeatedly booed and mocked at soccer matches in Hong Kong.
Since the clearance of the Occupy protest sites in late 2014, such small and spontaneous acts of protest are one of the many ways in which residents of the city have voiced their growing dissatisfaction with Beijing’s increasingly heavy-handed rule.
Beijing responded to the crescendo of boos in 2017 by passing a National Anthem Law, which dictates imprisonment for “disrespect” to the national anthem. The law was then incorporated into an annex of Hong Kong’s Basic Law, meaning that Legco is required to pass a version of the legislation.
The draft bill, finally released last week, presents an unprecedented challenge not only to freedom of speech but indeed to the rule of law in Hong Kong.
Clearly, to make “insulting” the national anthem a criminal offence is a violation of the freedom of speech guaranteed in the Basic Law and the International Covenant on Civil and Political Rights. In recent years, Hong Kong officials have repeatedly and fantastically claimed that free speech has its limits: this law would be a first attempt to legislate these imaginary red lines.
Such claims, however, belie a fundamental misunderstanding of the nature of free speech, which is specifically meant to protect controversial and contentious speech, and which cannot coexist in reality with a policy of prison time for “disrespect” to a song, regardless of how important Beijing’s leaders may consider the song.
Although the legislation claims that “all individuals and organisations should respect the national anthem,” we all know that respect is earned, not enforced.
Beyond the threat to free speech, the imprecise nature of the offence of “insult” presents an unprecedented challenge to rule of law in Hong Kong, one of the city’s great strengths relative to China.
In a definition that, in its vagueness, somehow manages only to complicate matters further, the bill defines “insult” as “undermin[ing] the dignity of the national anthem.” Even Chief Executive Carrie Lam admitted, in a moment of jarring honesty, that it is “difficult” to define precisely what constitutes an insult to the anthem.
Politicised prosecution on such vague charges is, of course, par for the course in the PRC but, at least until recently, this was not the case in Hong Kong. Yet the all too real punishment of up to three years in prison for the all too vague offence of “insult,” so as to enforce the imaginary red lines of Beijing and its accomplices, makes reasonable, non-arbitrary application of this law practically impossible.
Whether by mistake or by conscious design, the national anthem legislation will open the door for precisely the type of predatory politicised prosecution that the idea of “two systems” was supposed to prevent.
The bill thus poses a threat not only to Hong Kong’s basic freedoms but indeed to its entire legal system. Ironically, Beijing and its allies are using Hong Kong’s well-established rule of law, one of Hong Kong’s main political and economic strengths, to effectively legislate away rule of law.
The sole possible outcome of this deeply flawed legislation that revokes the rights guaranteed in the Basic Law will be not stability but rather further tensions. Why then are Beijing and its allies in the city so determined to proceed?
Far more than a threat to freedom of speech or rule of law, at a deeper level the National Anthem Law reveals the paradoxical failings of Beijing’s rule over Hong Kong, increasingly dedicated since 2014 to “overall jurisdiction”.
This push for overall jurisdiction, a code word for “control,” can be seen since 2014 in the cancellation of the political reform process, growing state influence in tertiary institutions, the crackdown on critical independent publishers, and the increasing harassment of government critics and independent media.
As Beijing’s grip has tightened through such measures, in the spirit of arising and resisting new forms of servitude, novel and increasingly extreme manifestations of displeasure have emerged in response: protests against Chinese cross-border traders, collective booing of the national anthem, and the rise of an increasingly vocal independence movement.
Rather than understanding the origins of these expressions of dissatisfaction in displeasure with tightening state policies, the response of Beijing and its allies has been to further tighten their grip.
Unprecedented interventions in Hong Kong civil society, from the banning of the Hong Kong National Party to the Beijing-style blacklisting of a journalist for hosting a controversial talk, to the current National Anthem legislation’s attempt to silence Beijing’s critics, have followed one after another.
Unlike the legally protected political behaviours that they target, these counter-measures in fact blatantly violate the Basic Law that they claim to protect, effectively destroying the ideal of “two systems.” And as this destruction continues apace through the tightening of controls in violation of Beijing’s promises, further tensions emerge, which in turn only generate further tightening of controls, which then drive further tensions.
Beijing and Hong Kong civil society thus find themselves caught in a self-reproducing feedback cycle of provocation and counter-provocation from which neither side appears willing to back down. The booing of the national anthem and the current national anthem bill are both symptomatic of these tensions and their self-reproducing nature.
The price to be paid for these tensions, however, is not only Hong Kong’s liberties and rule of law, which Beijing seems increasingly willing to abandon, but indeed Beijing’s aspirations to present itself as a stabilising force in the region and the world.
From the concentration camps of Xinjiang, to the militarization of the South China Sea, to the disintegration of Hong Kong’s liberties and rule of law, to the refusal of even moderate political reforms in China, Beijing’s demand for “stability” on its own terms appears increasingly doomed to produce a lasting legacy of instability throughout the region.
In response to these threats, it is well past time for those who refuse to be slaves to arise and make their voices heard, even if all that once can muster is a resounding “boo.”