Series: Critical Legal Thinking on China
It has been said that a poem is never finished, just abandoned. Academic writing has a touch of that too. The visions and revisions it has taken to get a text into decent shape could always do with one more run through, one more update, one more check for meaning and style. It is true also of research. It could be – it is – endless, but one must just stop somewhere otherwise the writing will never get done. If one is doing research on contemporary issues, a decision must be made about what to include and when to end the period for analysis. The process of selection and exclusion is one of the skills of judgement in research and writing one seeks to learn, test out, pass on, but always facing it afresh with each new project. For as Borges illustrates so well with Funes the Memorious – who remembers every detail but knows nothing of meaning, which only comes with generalization – without selection and exclusion, no sense will be possible. And if this is a concern that applies to research on current issues, it applies even more to historical research, since in addition to the question of when to stop, there is the much more challenging question of when to start. Each event, each effect, has a range of causes, and each of them in turn a further range. And so selection and exclusion – methodology – become key to making any sense, contested as that will always be. In the end perhaps, all you might say about your research and writing is that there are better and worse ways of abandoning it; and that what is offered in the text is the best you are able to do for now.
I raise these generic matters because in writing this blog post, such problems have come to the fore acutely. How to give a sense of contemporary Hong Kong when it is currently experiencing a period of rapid change, including significant legal and administrative change? Most readers will likely know that in 2019-2020 Hong Kong had a prolonged series of political protests. Millions of people took to the streets – at its peak, an estimated quarter of the population. Overwhelmingly these mass events were peaceful. But there was violence too: sieges, street battles between protestors and police, tear gas, rubber bullets, Molotov cocktails, even bows and arrows. A combination of marches being declared illegal and – more effectively when it came – a strictly policed Covid-19 regime limiting public gatherings to two people, brought an end to large scale demonstrations. Then, on 30 June 2020, a new law, made by the National People’s Congress in Beijing and unseen and undebated in Hong Kong, came into force. The National Security Law (NSL) has changed Hong Kong. Those who favour it, say for the good; others disagree. The pace of change is, however, unrelenting. Weekly, daily, sometimes hourly, legal, governmental, educational, and other developments take place.
So where to begin? I will come to that in a moment. But given conditions are in a process of unceasing change, when to stop? Pragmatically, I think I have found the answer to that. I report from today’s news.
“Seditious sheep books don’t show reality: police”
National security police confirmed on Thursday that they had arrested five members of the General Union of Hong Kong Speech Therapists over three children’s books featuring sheep that are suspected of inciting hatred towards the [Hong Kong] SAR government … One book suggests that ‘sheep’ can be eaten while in custody, but “that’s not true at all”, the senior superintendent insisted, adding “the book was simply aimed at glorifying violence and inciting hatred towards the administration and the judiciary.”
“Those publications targeted young kids aged between four and seven … that’s a very crucial age for children to develop their moral and ethical knowledge. By teaching them white is black and black is white, what will they grow up into? They may end up having criminal intentions,” he said.
[Senior superintendent] Li said HK$160,000 of the union’s assets had been frozen, adding that more arrests may be made. He also urged parents and distributors to throw away the books in question, saying nobody should possess them anymore. When asked if political satire or cartoons critical of the government will now be considered a breach of the law, Li said people are still allowed to criticise the government. “But while doing so, those responsible for these publications must not incite hatred against the authorities,” he stressed.
The pro-democracy Confederation of Trade Unions (CTU) said the case marks an escalation of speech crimes in Hong Kong, calling it “a death knell on the freedom of arts creation”. “Today, a children’s book is defined as seditious. Tomorrow, any metaphors … could be read as seditious words, and everyone in society is on edge,” the CTU said in a statement. “This also explains why many creators are self-censoring, pulling their works from shelves. The case again shows how the law is just being used by the authorities to spread fear.”https://news.rthk.hk/rthk/en/component/k2/1602067-20210722.htm
Two contradictory dynamics dominate in Hong Kong today, both of which receive their impetus from the Communist Party of China (CPC).
The first is a new, radical politicization. This involves the implementation of a Schmittian concept of the political. In saying this, I am not offering a theoretical interpretation of what is occurring. “Implementation” here is literal. Schmitt’s concept of the political is one of the theories guiding the party-state’s local practice. Schmitt’s ideas are being used publicly by influential (particularly legal) academics at national security and other governmental forums. The Nazi legal theorist’s work is, in other words – those valorized by research assessment methods – scoring well on impact and citation.
The conflict between friend and enemy is being operationalized at two levels. The first is the national or sovereign state level, for instance in the language China is using with respect to certain foreign powers, particularly the USA, as well as in the various offences of collusion with such powers in the NSL (including inviting sanctions). The second is internal to the Hong Kong polity, and works in detailed, thorough, and restless ways throughout its institutions and social relations. The effect of this is that no person and no activity is immune from the application of the distinction. (The authors of a book for children can be charged with sedition, for example.) Knowledgeable theorists may quibble as to whether there is an exact correspondence with Schmitt’s theory. In this case, it is largely irrelevant. What matters is that the friend/enemy distinction is being operationalized in concrete and effective interventions within Hong Kong.
The vehicle for the deployment of the distinction at both levels is the rhetoric of patriotism. By contrast to a Marxist account that defined friend/enemy in class terms (as was the case for most of the history of the CPC, culminating in the Cultural Revolution), the predominant narrative now lies in “the great rejuvenation of the Chinese nation”. In a speech on family values in 2016, for instance, President Xi spoke of the need to encourage “family members, especially the younger generation, to love the Party, the motherland, the people and the Chinese nation.” As Jiang Shigong, the influential Schmittian legal scholar at Peking University, writes, “This nationalist political confidence has become an important spiritual force consolidating the entire Party and the people of the entire nation.” Supplementing this with the “brilliant political imagination of thousands of years of Chinese civilization successfully fills the spiritual vacuum left by the weakening of the Communist vision.” (“Philosophy and History”, 2018)
Post-NSL, citizens’ love for the motherland is to be inculcated especially through “national education” in schools, through officials’ loyalty oaths, and the teaching of the national security law to students in universities, schools, and – age appropriately – kindergartens. Moreover, since the Communist Party and its leadership are at the heart of the PRC Constitution, for Hongkongers to be patriotic – to love Hong Kong and love the motherland – then logically even in capitalist Hong Kong respect for and loyalty to the Communist Party and its leadership is mandated.
Nationalist programmes have one significant advantage over class-based approaches. Where the latter would decry class division and inequality (especially where this is a result of a state’s policy reforms) nationalism covers over these, and other, socio-economic divisions in the name of a single commonality. That does not mean, of course, that divisions cease. Indeed, part of the success of nationalist rhetoric lies in naming internal opposition unpatriotic. This has been the key legitimation for “improving” the electoral system in Hong Kong, whereby candidates for selection and (the now fewer for) election are to be screened for their patriotism. As the widely displayed slogan states: “Patriots administering Hong Kong” guides the new institutional arrangements. The effect of this has already been, and will continue to be, to purge Hong Kong of any political opposition deemed unpatriotic to the motherland by the Party.
This brings us to the second dynamic: de-politicization. Part of the narrative guiding the reforms is that pro-democracy members of the Legislative Council (Hong Kong’s local legislature) were “politicizing everything” and causing trouble in doing so. The same notion was applied to the elections for the District Councils where pro-democracy candidates gained majorities throughout the city. And it has been claimed also with respect to schools, universities, student unions, the media, and other civil society groups: that they were all becoming too political. Hence the goal of the reforms is to rid these various places of the possibility of politicization: in the Legislative Council, for example, by increasing the number of appointed members to ensure it is more “representative” than the “dictatorship of the majority” which multi-party democratic elections would produce; the disavowal of student unions by their universities for being too political; the Education Department circulating guidelines to schools that pupils are liable to censure if they partake in political activities, and so on.
Hence in a range of locales – workplaces, representative bodies, the street, educational institutions – and through a number of styles: media campaigns, administrative and financial threats and sanctions – de-politicization is a key goal to be achieved. As media professor Cherian George points out, while this involves some censorship and legal coercion it also – and primarily – deploys “smarter” techniques, particularly those associated with “distraction”: “As long as they leave politics to the state, people are allowed to consume and produce media that amuse them in various ways”. (George 2021)
And yet criminalization is also commonly understood as an important technique of depoliticization. So let me make two small jurisprudential observations in closing. First, although it was widely stated by its promoters that the NSL would only affect a tiny minority of people, it necessarily works by targeting everyone if for no other reason than this is how laws of general application work. The criminal law, for example, applies to all citizens equally, not just those who might be tempted to break it; presumably this is the basis of any claimed deterrent effects. Jeremy Waldron, drawing on Lon Fuller and others, emphasizes that in this respect legal systems rely on the “self-application” of legal norms. That is, citizens subject their conduct to the governance of general public rules by and for themselves. In doing so, they exercise their autonomy and dignity in a manner that is different from being, for example, herded like animals. Legal systems work therefore, he says, “by using, rather than short-circuiting, the agency of ordinary human individuals. They count on people’s capacities for practical understanding, for self-control, for self-monitoring and modulation of their own behaviour in relation to norms that they can grasp and understand.” (Waldron, “How law protects dignity”, 2012 Cambridge LJ)
This notion of “self-monitoring” is central to the operation of the NSL. Whether Waldron would interpret this as an expression of dignity when, as is now happening, individuals “self-monitor” their actions (including their speech and writing) in ways that amount to self-censorship is open to question. For when statutory norms of criminal law are loosely defined, and where the personal stakes are immensely high – the possibility of heavy custodial sentences, and, given the court-sanctioned high threshold for getting bail, the likelihood of many months of pre-trial remand – most people are likely to err on the side of extreme caution and not exercise autonomy in the direction of even the mildest forms of political dissent. This too, then, is another aspect of the process of depoliticization.
The second, and final, observation is this: it is crucial to understand that all this is happening legally and that all the powerful actors – including the administration and the judiciary – are constantly at pains to state how everything is taking place according to the rule of law. So as I run out of space, let us observe all too briefly a twist that returns us to our other opening questions: where to start – how far back to go? Consider this: the trade unionists allegedly spreading seditious ideas and inciting violence among 4-7 year olds, are being charged not under the National Security Law, but the Crimes Ordinance. This statute was enacted by the British colonial government and is still in force. Its astonishingly vague definition of “seditious intention” includes (in section 9, still reflecting the original wording) intentions “(c) to bring into hatred or contempt or to excite disaffection against the administration of justice in Hong Kong; or (d) to raise discontent or disaffection amongst Her Majesty’s subjects or inhabitants of Hong Kong; or (e) to promote feelings of ill-will and enmity between different classes of the population of Hong Kong”. The potential of these offences to criminalize vast swathes of citizens’ behaviour is readily being taken up and deployed by prosecutors today. And it signals an interesting form of legal continuity.
For the rule of law in pre-handover Hong Kong was, as it was elsewhere in the British colonies, simply this: the law of rule. It mattered that it was law, of course, since that gave it an effectiveness (including that of “self-application”) and a veneer of legitimacy (at least in the eyes of the rulers); but it mattered more that it was rule. Within this set-up, the objective application of the law in the practice of ruling was the specialism of the common law and its judges.
And this is exactly where the judiciary find themselves today. Wound up like clockwork toys, they trundle off in whatever direction they are pointed. Tasked with enforcing the terms of the NSL and the Crimes Ordinance, they do their duty by the law.
And with this thought, I am out of space. I must therefore abandon the writing here, for now.
Scott Veitch is Paul KC Chung Professor in Jurisprudence, Faculty of Law, University of Hong Kong