The mass arrests of opposition organisers and candidates of an election primary on suspicion of subversion on Wednesday left Hong Kong’s legal experts divided on which of their actions constituted an offence under the national security law.
While police accused the 53 activists and former lawmakers taken into custody during a dawn raid of plotting to “paralyse” and “overthrow” the government through their plans to control the 70-member legislature, several scholars failed to see how these acts amounted to a threat of force, the use of it or any other offences under the Beijing-mandated law.
Others said they needed to see more evidence uncovered to show there were direct or indirect calls for violence or illegal funding activities as part of the primary run-off that would form the substance of the alleged crime of subversion.
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Six of the 53 still being detained by police at press time were arrested on suspicion of subverting state power by organising the primary elections to paralyse the government, while the others were caught for allegedly taking part in the events.
But legal scholar Simon Young Ngai-man, from the University of Hong Kong (HKU) said: “Paralysing the government by means that are lawful and without violence or threat of violence is not a crime.”
Police said the arrests were made under Section 3 of Article 22 of the national security law, which makes it illegal for anyone to use “force or threat of force or other unlawful means” to seriously interfere in, disrupt or undermine the duties and functions of the Hong Kong government. Those found guilty of subversion could face the maximum penalty of life imprisonment.
Police have also served several court orders to four press outlets, demanding they produce certain information, and have frozen more than HK$1.6 million (US$206,370) in assets.
The secretary for justice is not likely to charge someone unless there’s a reasonable chance of conviction
Maria Tam, pro-establishment heavyweight and barrister
The primary election, which took place on July 11 and 12 last year, barely two weeks after the national security law came into force, aimed to shortlist the best opposition candidates to compete in last September’s Legislative Council polls, later postponed because of the pandemic.
The primary was the central plank of a 35-plus strategy masterminded by former University of Hong Kong legal scholar Benny Tai Yiu-ting who said that if opposition candidates were strong and could win more than half of the legislature’s 70 seats, they could veto the government’s budget plans. This could in turn trigger a political stalemate that could force Chief Executive Carrie Lam Cheng Yuet-ngor to step down.
Tai expanded on the idea in an article The ten steps to real ‘laam chau’ – the fate of Hong Kong in Apple Daily , referring to the term used by radical protesters that means mutual destruction.
After the opposition won control of the legislature, the government would fight back, he said. Tai went on to list as the “ninth step” that the city “will see increasingly fierce resistance in the streets with an equally bloody crackdown, Hongkongers will start a mass strike, paralysing society”.
He added: “When it comes to the tenth step, we will be already holding the Chinese Communist Party and jumping off the cliff together.”
Justifying the arrests, Secretary for Security John Lee Ka-chiu accused Tai of inciting riots with the essay, thereby breaching Article 22, while a police spokesman in a press briefing equated paralysing the government with subversion.
Ronny Tong Ka-wah, a senior counsel and a member of the chief executive’s de facto cabinet, the Executive Council, said he did not see how the democratic primaries could be considered subversion unless there was more evidence that the plan involved violence or other unlawful behaviour. He said the authorities needed cite more elements in the conduct of the polls to prove the commission of a crime.
Pro-establishment heavyweight and barrister Maria Tam Wai-chu, who is also vice-chairwoman of the Basic Law Committee that advises Beijing on the city’s mini-constitution, agreed police might have to produce more evidence to build their case.
“The [arrestees] organised, planned and actively participated in a scheme to paralyse the government and Legco. That, to me, fits the description of Article 22 (3),” she said.
But she added: “What we don’t know is the ‘unlawful means’ that was being employed to commit this offence, that’s up to the police to further investigate. But the secretary for justice is not likely to charge someone unless there’s a reasonable chance of conviction.”
Young, from HKU, said the authorities were likely to look into whether the 35-plus plan and the “10 steps” were going to either involve the use of force, threat of force or other illegal means.
Tai postulated in his essay that the government could dissolve the legislature if the opposition bloc controlling the chamber vetoed the budget.
He suggested that if the camp continued to secure the majority in the next election and vetoed the budget for the second time, it would paralyse the government and force the chief executive to resign – a scenario spelled out in the Basic Law.
Article 52 of the mini-constitution states that the chief executive must resign if the new Legco, after the legislature was dissolved because it refuses to pass a budget or any other important bill, still refuses to pass the bill in question.
Young said the offence of incitement to riot and therefore threaten national security as alleged by the security minister would only be proven if police could provide substantive evidence.
At issue was whether the 10-step plan was a prescription or a call to action, or just a description of what could happen amid tense relations between the opposition and the government.
Pro-establishment lawmaker Michael Tien Puk-sun, a delegate to the national legislature, urged the police to explain more clearly what “unlawful means” the arrestees had adopted in trying to achieve their goal.
The legal debate over the mass arrests also threw up the question of whether the holding of a primary election would now cross Beijing’s red line. But legal scholars dismissed such concerns, saying they saw nothing under the national security law that forbade it.
Police too were at pains to point out primaries were not a crime. At a press briefing, Senior Superintendent Steve Li Kwai-wah gave the assurance that holding a preliminary poll would be fine, and that the 610,000 who cast their ballots during last year’s primary would not be prosecuted.
“The police operation this time only targeted strategic acts, which deployed systematic means through the so-called 35-plus elections or any other procedures, to cause paralysis to Hong Kong,” he said.
Questions also emerged after the arrests over whether legislators in future could, individually or as a group, veto the government’s bills and budgets without fearing adverse consequences, another contentious point in the police’s case for the crackdown.
Bar Association chairman Philip Dykes SC, who spoke in his own capacity as a veteran human rights lawyer, argued that such a stance would be considered lawful.
He said the move was allowed under article 52 of the Basic Law. “It may indeed ‘seriously interfere’ with the [chief executive]’s legislative programme but that is the whole point of [Basic Law] Article 52,” he said.
But pro-establishment lawmaker and solicitor Holden Chow Ho-ding, said the issue was never about whether a lawmaker could veto a bill. “The unambiguous aim of the primary election was to paralyse the government’s operations from the start,” he said.
While authorities have taken their biggest step yet in wielding the new law against the opposition camp, the next hurdle may prove formidable. Grenville Cross, former director of public prosecutions, said that although police had made the arrests, they needed to meet a higher threshold for prosecutors to bring charges. “Only time will tell if that test is ever met,” he said.
Additional reporting by Tony Cheung
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