Thirty-two years ago, most Hong Kong people would have ignored the suggestion that the Hong Kong Alliance in Support of Patriotic Democratic Movements of China should be swept into the dustbin of history. But public perception of the alliance has undergone a metamorphosis. According to a recent survey conducted by the Hong Kong Public Opinion Research Centre, 28 percent of respondents said the alliance should be disbanded. The new national security regime may help explain why the tide of history now threatens the sustainability of the alliance.
An issue of great concern is whether one of the operational goals of the alliance, which calls for an end to the CPC-led political system in China, demonstrates a concrete subversive intent. Since the promulgation of the National Security Law for Hong Kong, we have come closer than ever to realizing the subversive nature of its operational goal/slogan. According to Tian Feilong, an associate professor at Beijing’s Beihang University, the subversive slogan is incompatible with the new national security regime; and he called on the Security Bureau of the Hong Kong Special Administrative Region to investigate the alliance’s activities.
Tian argues that shouting the “end one-party rule” slogan during the June 4 gatherings in Victoria Park constitutes “action” to incite hatred of the Communist Party of China. Most importantly, Tian points to the amendment of China’s Constitution in 2018, which has left no doubt about the supremacy of the CPC leadership in the nation. He also urged the alliance to put aside its fluke mentality and stop indulging in the faint hope that its halcyon days will return. In addition to investigating the registration and political platforms of the alliance, the Security Bureau should order the alliance to strike out its subversive political platform. According to Tian, the Security Bureau should outlaw the alliance in the same way that the Hong Kong National Party was outlawed in 2018 if the alliance refuses to comply with the deletion order.
Some pro-establishment politicians are also of the view that the “end one-party rule” slogan of the alliance has breached China’s Constitution. Tam Yiu-chung, a heavyweight in the pro-establishment camp, said that this slogan demonstrated a subversive intent. Even Albert Ho Chun-yan, the chairman of the alliance from 2014-19, admitted that the leaders of the alliance were viewed as subversive elements by the central government.
The above warnings highlight the legal tightrope that the alliance has to walk as the constitutionality of the provisions of the National Security Law has been affirmed by the Court of Final Appeal (HKSAR v Lai Chee Ying (2021) HKCFA 3, paragraphs 37 and 70). The CFA makes it clear in paragraph 37 of the judgment that “the legislative acts of the NPC and NPCSC leading to the promulgation of the NSL as a law of the HKSAR, done in accordance with the provision of the Basic Law and the procedures therein, are not subject to review on the basis of any alleged incompatibility as between the NSL and the Basic Law or the ICCPR as applied to Hong Kong”. Unable to take refuge in any legal gray areas, the alliance should abandon its subversive slogan or risk attracting legal sanctions under the new national security regime.
Adding to the alliance’s concern is the seemingly wide scope of subversive activities covered by Article 22 of the National Security Law. Some local lawyers argue that the provision stipulates that subversion has only been committed if a person resorts to the use of “force or threat of force or other unlawful means with a view to subverting the State power”. But no one is under the illusion that Hong Kong courts can interpret these provisions with finality. The power of final interpretation of the National Security Law, which is a piece of national legislation, lies with the National People’s Congress Standing Committee.
Mainland legal scholars are more familiar with the NPCSC’s interpretation of legislation in China. According to Tsinghua University law professor Wang Zhenmin and other legal scholars, the scope of subversive activities should be widened to include the use of rumor and malicious defamation to bring in hatred against the State. Soft violence should also be regarded as a subversive activity, Wang said. The recent report by Ta Kung Pao that some books on display at the June 4th Museum contain subversive materials should concern the alliance.
Unlike Tian’s clear warning, Chief Executive Carrie Lam Cheng Yuet-ngor only made vague remarks by saying that the legality of slogans depended on the specific circumstances, as well as evidence gathered by law enforcement. Nevertheless, her remarks on evidence remind the alliance that the displayed books at the June 4th Museum and the publications of the alliance may provide supporting evidence for the Security Bureau to strengthen its subversive charge against the alliance. It is hoped that the above analysis may alert the alliance to the reality that the National Security Law has implications for its sustainability if it sticks to its subversive slogan. An easy way out of the impasse is to abandon the subversive slogan of “end one-party rule”, which has remained an albatross around the neck of the alliance.
Junius Ho is a Legislative Council member and a solicitor.
Kacee Ting Wong is a barrister and a part-time researcher of Shenzhen University Hong Kong and Macao Basic Law Research Center.
The views do not necessarily reflect those of China Daily.
HONG KONG NEWS