Iron curtain: Hong Kong mobilised as exemplary success for Project Xi’s legal authoritarianism
Four Australian judges are sticking to their positions as Beijing continues to clamp down on Hong Kong democracy.
“Horses will run faster, stocks will be more sizzling, and dancers will dance more happily.”
– Then Chinese government spokesman Zhao Lijian,
on the impact of the 2020 national security law on Hong Kong
Four retired Australian judges have quietly become hero figures for Hong Kong’s Beijing-appointed political elite. For they have stuck to their positions on the Hong Kong Court of Final Appeal even as China’s rigorous control over the city continues to step up.
Beijing is pressing on into every aspect of Hong Kong life even as the Middle East implosion, the Ukraine war, economic woes, climate change, immigration issues and technological churn including the looming ubiquity of artificial intelligence have all become pressing worries for Australia and our international friends and neighbours, naturally sucking the oxygen available for other concerns.
Chinese Communist Party general secretary Xi Jinping believes that partly as a result, and as Beijing’s influence in the global south continues to grow, opportunity looms for a colossal shift in the world’s centre of gravity, that despite its economic and demographic headaches China’s hour is approaching.
The national security law introduced in mid-2020 imposed an iron curtain of legal authoritarianism that was a masterstroke of Xi’s hegemonic ideology, which might be branded Project Xi.
Instead of enabling a modest glimpse of an alternative, freer future for China, Hong Kong is now being mobilised as an exemplary success for Project Xi.
The ambitiousness of this project is being highlighted there, with virtually the entire democratic political elite receiving crushing verdicts in show trials.
Australians dominate the six foreign judges left on the Appeals bench – Robert French, Patrick Keane, James Allsop and William Gummow. The other two are British. Five others have resigned this year so far and 10 in all since the national security law was introduced.
In June, Canadian judge Beverley McLachlin and British judges Lawrence Collins and Jonathan Sumption quit the court, Collins citing “the political situation” in Hong Kong and Sumption writing in the Financial Times that “intimidated or convinced by the darkening political mood, many judges have lost sight of their traditional role as defenders of the liberty of the subject, even when the law allows it”.
Sumption wrote of “the paranoia of the authorities” there, adding: “Hong Kong, once a vibrant and politically diverse community, is slowly becoming a totalitarian state. The rule of law is profoundly compromised in any area about which the government feels strongly.”
Australian judge James Spigelman quit earlier, in 2020, for reasons “related to the content of the national security legislation”, the day after Carrie Lam, the Hong Kong chief executive at the time, said the city had no meaningful separation of powers between the legislature, executive branch and judiciary.
The horses may still be running, but Hong Kong’s Hang Seng index has fallen 16 per cent since Zhao’s 2020 prediction, compared with a 78 per cent rise for Japan’s Nikkei, while many dance venues – nightclubs and bars – have closed.
As Zhao was talking, police were arresting people for holding up blank sheets of paper to show they feared they might be charged for saying almost anything. Their arrest for saying nothing at all proved they were right.
Hong Kong’s legal machinery, controlled ultimately by incumbent Chief Executive John Lee, a former policeman, has been deployed to purport that those truly responsible for the enduring impact of Tiananmen in 1989 are not those who murdered hundreds of young civilians but are the Hong Kongers who seek to remind people today of that tragedy.
The legal system also has been co-opted to show that the true villains among public leaders are not those who break promises to maintain Hong Kong’s way of life for 50 years but those who seek to participate in open elections.
Police there arrested three people aged between 18 and 31 at a soccer match for failing to stand for the playing of the national anthem of the People’s Republic of China, the March of the Volunteers: “With our flesh and blood, let us build a new Great Wall/As China faces its greatest peril … Braving the enemies’ fire/March on!” They face up to three years’ jail and a $10,000 fine.
Hong Kong had once, palpably, the most advanced economy in China. Now it is puzzling over ways to catch up to neighbouring Shenzhen in the People’s Republic of China mainland that 50 years ago was a country village.
Its courts, once uniquely independent in the Chinese world, are today at the heart of its subjugation, with Hong Kong transforming into an exemplar of the power of the PRC’s rapid redirection under Project Xi, which seeks to ensure that others – inside China and beyond it, where possible – adapt to the CCP’s standards, rather than it having to adapt to international values, laws or trends.
The key leaders of Hong Kong’s democratic groups, who won a landslide local government victory when 71 per cent of electors voted at the last free election, in November 2019, were charged with new offences under the national security law and held in jail, while some managed to escape, especially to Britain, Canada and Australia.
Eight women and 39 men were charged with trying to overthrow the government by running primaries to pick the best candidates for a forthcoming election. Thirty-one pleaded guilty. Of the 16 who pleaded not guilty to subversion, two were acquitted – the first under the new Project Xi security regime.
One of those who denied the charges but was convicted is an Australian, Gordon Ng, aged 45, who formerly worked in investment banking after graduating in Australia. His crime is to have set up a Facebook page urging people to vote for such candidates.
The primary participants’ behaviour that appears to have most enraged the authorities is that many committed to blocking supply to the government – which is a non-elected body – unless it conceded democratic reforms. Under similar logic, Australian MPs who supported Malcolm Fraser in blocking supply bills in 1975 would have been arrested and found guilty of subversion.
Almost all of the 47 HK democrats were held in prison for more than three years while awaiting trial, including Claudia Mo, aged 67, a former journalist who became a Civic Party founder and legislator. While she was in prison, her party abandoned the unequal struggle and disbanded. She and the others are still detained, awaiting sentencing following ongoing mitigation hearings.
Former University of Hong Kong law professor Michael Davis, now a global fellow at the Wilson Centre, a US think tank, says he hopes nobody misses the irony of this prosecution and conviction: “Democratic candidates organised a primary to enable the best candidates to run in a scheduled election in complete compliance with the laws regulating elections and the guarantees of freedom of expression and association in the Basic Law (the Hong Kong constitution). Meanwhile, officials of the Beijing and Hong Kong governments who completely overturned the constitutional order … and undermined the independence of both the Legislative Council and the courts charge these democrats with subversion.
“One might fairly ask who is guilty of subverting the constitutional order.”
More than 10,000 people have been charged with offences relating to demonstrations in Hong Kong five years ago including on June 9 when more than one million protested against a new extradition law for China. Many cases await completion.
In March, Hong Kong introduced a new article 23 to its Basic Law, tightening further the regime’s security grip. This explicitly rules out the prospect of early release for good behaviour for anyone convicted of “anti-China” security offences, except in the unlikely eventuality of the prisons commissioner being satisfied that the person released is no longer a security threat. Remission has effectively been placed off the table.
On the eve of the anniversary of the killings around Tiananmen Square on June 4, 1989, police detained artist Sanmu Chen for appearing to write the numbers 8964 in the air with his hand, and six people were arrested under a new Hong Kong law, the Safeguarding National Security Ordinance, for posting messages online about the Tiananmen killings. They face up to seven years’ jail.
For decades, tens of thousands of middle-class Hong Kongers would come to Victoria Park to commemorate the Tiananmen tragedy through a candlelit vigil. Now, Beijing-backed groups instead stage on that date a carnival that might be viewed as a celebration of Project Xi’s success. This is deemed core CCP business, since its official history – along with ideology, President Xi’s major focus – portrays Tiananmen 1989 as an existential challenge to the party, now as then.
Kevin Yam, an Australian cricket and footy lover and ALP member who achieved outstanding success as a bright young corporate lawyer in Hong Kong, now faces considerable risk in travelling to or through many overseas cities because the HK regime last year issued a $HK1m ($191,000) bounty for bringing him in, wild west-style.
His crime appears to have been to have criticised publicly the redirection of the Hong Kong legal system. Yam, who had earlier returned to Australia after living and working in Hong Kong for more than 20 years, was accused by the HK regime of “anti-China activities” – for remarks made while living back in Australia – for which it claims extraterritorial powers. Lee said Yam and Australian resident Ted Hui would be “pursued for life”.
Yam says the Albanese government can and should consider the possibility of sanctions against leading members of the Hong Kong regime, the Magnitsky-style sanctions enabled by legislation passed three years ago – chiefly driven by the late and much lamented ALP senator Kimberley Kitching – to target overseas figures for human rights abuses, violations of international humanitarian law, serious corruption and activities undermining good governance and the rule of law.
Canberra has applied such sanctions, which include banning from visiting Australia, and seizing any assets owned and held within the country’s jurisdiction, against Russian and Iranian regime leaders, and against extremist Jewish settlers – but not yet against the Hong Kong political elite that is publicly plotting to seize an Australian citizen and a resident.
That elite includes Tam Yiu-cheng, the HK delegate to the National People’s Congress standing committee that in 2020 approved the national security law’s 66 articles without debate.
In August, Baron David Neuberger, one of the two British judges who remain on the HK Court of Final Appeal alongside the four Australians, was a member of the bench that unanimously dismissed a bid by renowned media entrepreneur Jimmy Lai – who was nominated for this year’s Nobel Peace Prize – and six other pro-democracy activists to overturn their convictions for taking part in a peaceful protest.
Lai has been incarcerated for more than four years and many analysts express concern that the Chinese authorities will never now free him. “Freedom of speech,” he wrote in a letter from solitary confinement, “is a dangerous job.”
The convicted democracy leaders, including famous lawyers Martin Lee and Margaret Ng, had argued from British legal precedent on peaceful protests, but the judges argued that Hong Kong case law differed.
When former British governor of Hong Kong and until recently chancellor of Oxford University Chris Patten criticised the trial, the Hong Kong government issued a statement lambasting him for “malicious slandering”, for “blatantly improper … and outrageous” remarks, and praising the judges, especially Neuberger.
Neuberger, who like Lai is aged 76, says he will remain on the Hong Kong bench “so long as I can do good by being there” and “to support my judicial colleagues” and the rule of law.
Yam has been advised unofficially that if seized and taken to Hong Kong, his “offences” would be perceived at the lower end of serious national security criminality, thus attracting a likely minimum sentence of five years. Admission of guilt – or not – is not a major issue in such cases, since the core crime in such political cases, now in Hong Kong as in mainland China, is failure to acknowledge and respect the primacy and infallibility of the CCP and its leadership.
Following prosecutions of journalists for sedition and other attacks on the free flow of information that had been vital for HK’s business success, Australia and 23 other countries issued a statement last December expressing “deep concern at the Hong Kong and mainland Chinese authorities’ continued attacks on freedom of the press and their suppression of independent local media in Hong Kong … Freedom of the press has been central to Hong Kong’s success for many years. Curtailing the space for free expression of alternative views weakens vital checks and balances on executive power.”
Since then, judge Kwok Wai-kin has jailed an editor, Chung Pui-kuen, for 21 months, accusing him of smearing the Beijing and Hong Kong governments.
Amnesty International China director Sarah Brooks said after the hearing: “There has rarely been a more dangerous time to work in media in the city … Today’s sentencing looks designed to reinforce a ‘chilling effect’ that dissuades others in the city – and beyond – from criticising the authorities.”
Hong Kong, ranked 18th in the World Freedom Index in 2002, is now 135th of 180 territories.
Even wearing garments deemed unpatriotic has become dangerous in Hong Kong. Recently Chu Kai-pong was sentenced to 14 months in jail for wearing a T-shirt saying “Liberate Hong Kong, revolution of our times” and a mask with a democratic slogan, FDNOL – “five demands, not one less”.
National security education is now mandatory for all children above six years old, and the speeches and writings of President Xi – especially his Thought on Socialism with Chinese Characteristics for a New Era – are expected to form a core part of curriculum guidelines for a new high school subject.
The number of non-Chinese residents left in Hong Kong has more than halved in the past three years, to 270,000, as the city inevitably shifts from a cosmopolitan entrepot to a loyal part of the People’s Republic, placing its economic eggs – riskily these days – in the PRC basket.
About 95 per cent of those recently settling in HK under its Top Talent Pass Scheme come from the Chinese mainland, although even some of them may evince some disappointment with the city’s shift of character – otherwise, why leave China?
As Hong Kong’s global connections elsewhere have shrunk, its government has targeted wealthy elites in the Gulf states whose hereditary rulers are seeking closer connections with Beijing.
At home and increasingly also abroad, nothing and no one has emerged yet to cause the CCP’s ambitions to falter convincingly, even though over time that will likely happen as China runs out of people and money. But until then, and as the world agonises elsewhere, Project Xi remains on the march – with Hong Kong, a once magnificent city, its great success story.
Rowan Callick is an Industry Fellow at Griffith University’s
Asia Institute.
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