The arrest of 53 persons on January 6-7 this year in Hong Kong on suspicion of subversion has, once again, raised a frenzy of condemnation by western leaders and the media.
All the arrested persons have been released on police bail as investigations continue. These are likely to take some time to complete.
Most of the 53 are “pro-democrats” seeking to take part in the September 2020 elections for the Legislative Council ( since postponed ); the rest are organizers of an event called the “35-plus primaries” which took place on 11-12 July.
The primaries were organized to find the candidates among the pro-democrats most likely to be elected into office, to prevent the votes for them being split in the various constituencies. The immediate aim was that with 35-plus opposition councillors in office in September, they would dominate the 70-seat legislature. Apparently, 610,000 registered voters took part in the primaries.
What is sinister about the whole scheme is this. It was to implement a wider plot called “10-steps to mutual destruction”, which had been outlined in the pro-democrat newspaper Apple Daily on 28 April 2020.
At the core of the “10-steps” was this. The legislators with control of the Legislative Council ( LegCo ) were not there to discharge their constitutional functions in the best interests of the community. Quite the reverse. The aim was to use their powers as legislators to create chaos.
The steps envisaged were these:
- To exercise their powers under Article 73(2) of the Basic Law to refuse any allocation of funds to the government and to vote down the annual budget, forcing the Chief Executive to dissolve LegCo under Article 50 of the Basic Law.
- New elections would be called.
- The new LegCo, with the plotters still in control, would once more veto the budget, compelling the Chief Executive to resign under Article 52(3) of the Basic Law.
- This would inevitably lead to an acute crisis causing the Central Government to intervene.
- This in turn would result in “strong protests” in the streets with bloody repression to follow.
- Western countries would respond with political and economic sanctions on China.
- Some of the arrestees had, apparently, signed undertakings regarding the first three steps.
This, in essence, was the shape of their “mutual destruction” or, as the slogan in the 2019 riots went, “We Burn You Burn”. The same Chinese characters were used in both cases.
To avoid this disastrous outcome, the government could yield to the plotters’ “five key demands”. These were in fact set-up for the government to refuse, for they knew full well that there was no way the government could have accepted them. Amongst the demands were “double universal suffrage” which required amendment of Annexes I and II the Basic Law; something which needed action by the National Peoples’ Congress. This was not within the gift of the Hong Kong government.
That, in essence, is the shape of things as they seem to stand today, leading to the arrests. Nothing eventuated because the September 2020 elections were postponed.
No facts have been established; but what is known seems to disclose all the elements of a conspiracy to subvert, contrary to Article 22 ( 2 ) and ( 3 ) of the national security law.
That Article, where relevant, reads:
“A person who organises, plans, commits or participates in any ….acts by ….unlawful means with a view to subverting the State power [ by ]
( 2 ) overthrowing the body of power of the Hong Kong Special Administrative Region
( 3 ) undermining the performance of duties and functions in accordance with the law ….by a body of power of the Hong Kong Special Administrative Region”
shall be guilty of an offence.”
This is a very serious crime requiring a high standard of proof. At an interview on Radio Television Hong Kong ( RTHK ) recently, the Democratic Party chairman justified their actions by saying: “You can vote down the budget as councillors performing constitutional duties under the Basic Law”.
This was a disingenuous reference to Articles 50, 51, 52 and 73(2) of the Basic Law, treating them as a plaything for lawyers, picking out the black letters for argument in court. Other spokespersons have made the same point.
The Basic Law is not a black letter contract entered into by parties with equal bargaining power, each seeking some advantage over the other from the text of the document they signed.
It is a living constitutional instrument and, under the common law, must be construed in a broad and liberal manner according to its true intent and spirit.
The preamble to the Basic Law states its purpose to be, among other things, to maintain “the prosperity and stability of Hong Kong”.
LegCo is one of the prime organs of government. The powers given to legislators under Articles 73(2), 50, 51 and 52(3) of the Basic Law are to be exercised in good faith, in the best interests of the community, maintaining prosperity and stability in the Region. A councillor may be muddle-headed, ignorant and unreasonable and still be doing his constitutional duty as councillor. But when the whole essence of his endeavours is to wreak havoc and bring down the government, he is no longer performing constitutional duties under the Basic Law. He is using the Basic Law as a disguise for subversive activities.
It is wholly unnecessary to write into the Basic Law: “Every legislator must act in good faith” anymore than it is necessary to prescribe: “A legislator must never take bribes”.
The police investigations are at an early stage. Much remains to be revealed.
What, precisely, was put to the registered voters at the primaries to induce them to come out to vote ? What was said to them ? Probably different things were said to different constituents, and there may be questions as to the truthfulness of what was said.
According to the police, the voters were paid substantial sums to take part In the process. Arising from this, HK$1.6 million has been frozen. The significance of this will need to be explored.
The Secretary for Security described the whole operation as “an ugly plot”.
The degree of culpability of each participant may vary. But, looking at the matter in the round, the Secretary’s description may be no exaggeration.
Henry Litton CBE, GBM is a retired permanent Judge of the Hong Kong Court of Final Appeal. Litton founded the Hong Kong Law Journal in 1971. In 2019, Litton published the book ‘Is the Hong Kong Judiciary Sleepwalking to 2047’ in which he criticised numerous aspects of Hong Kong's legal system, focusing particularly on the misuse of judicial reviews in recent years.
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