Is It OK to Advocate Independence in Hong Kong?

Twenty years ago when Christopher Patten, the last British governor of Hong Kong, handed the former colony back to China, he was quite confident about Hong Kong’s future under "one country, two systems." At the farewell ceremony in 1997, he said, “Our own nation's contribution here was to provide the scaffolding that enabled the people of Hong Kong to ascend. The rule of law. Clean and light-handed government. The values of a free society.”

Patten would have never imagined that one day the city’s two fundamental values – the rule of law and freedom of speech – could be in contradiction. The city is now being torn apart by two groups, both sides claiming that one value is more important than the other.

Tensions Over Pro-Independence Posters

Before the first day of the new school year, banners and posters advocating for Hong Kong’s independence appeared at the Chinese University of Hong Kong (CUHK) and then several other academic institutions.

Two related videos went viral. One captured a female student speaking both Mandarin and English trying to tear down the posters at CUHK, and arguing with Cantonese-speaking students. Another video recorded Ernie Chow, the former president of the Chinese University Student Union (CUSU), shouting insults toward Chinese mainlanders who were trying to paste anti-independence posters on the democracy wall. The videos ignited fury among Chinese netizens, particularly those in mainland China.

Immediately, a debate broke out – not only in the city itself but across the whole country – about whether the actions of the two students were appropriate.

After days of verbal clashes, on September 15, a group of Hong Kong university heads (including CUHK), with the support of Hong Kong’s education bureau, issued a joint statement:

We treasure freedom of expression, but we condemn its recent abuses. Freedom of expression is not absolute, and like all freedoms it comes with responsibilities. All universities undersigned agree that we do not support Hong Kong independence, which contravenes the Basic Law.

In response, on September 16, a dozen university student unions and colleges (including CUSU) also issued a joint statement:

We treasure freedom of expression, which is the right that we are born with. The universities do not support Hong Kong independence, but teachers and students still enjoy the freedom of speech to discuss Hong Kong independence. All students’ unions undersigned agree that discussion on Hong Kong independence is protected under Article 27 of the Basic Law. We urge the universities to stop misleading the public.

While many commentators are still hesitant to address the elephant in the room, both statements above explain each side’s stance clearly and put the fundamental contradiction on the table. Can Hong Kong’s independence be discussed or even advocated, especially in academic institutions?

More Than an Academic Issue

Since the current clash is taking place on campuses, many commentators have thus claimed that it’s an issue of academic freedom. Chung Kim Wah, a political commentator and professor at Hong Kong Polytechnic University, said on his Facebook page that “anyone who still upholds academic freedom should know that a university should maintain an open environment for freedom of thought and speech that no forbidden area should be set … academia should not stand with the power now and become a puppet of the regime.”

But this is more than an academic issue. Pro-independence advocates are not only discussing the issue in academic forums, but have generated a political movement.

For example, a group of young local people who advocate for Hong Kong’s independence formed a political party called Youngspiration in 2015. And in the 2016 Legislative Council election, Youngspiration won two seats in the direct elections. However, when both pro-independence legislator-elects read the official oath in the first meeting of the legislative session, they pronounced China as “Chee-na,” a term considered derogatory and offensive since the Sino-Japanese War. One even read "People's Republic of China" as "people's re-fucking of Chee-na."

Consequently, both legislators' seats were renounced by a court.

Is It Legal to Advocate Independence?

The pro-independence politicians repeatedly cited Article 27 of the Basic Law, Hong Kong’s mini-constitution, to demonstrate that their behaviors were protected by law:

Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.

On the other hand, those who are against independence also quote the Basic Law to defend their position. Article 1 and the Article 23 say:

The Hong Kong Special Administrative Region is an inalienable part of the People's Republic of China…

The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.

In addition, Hong Kong’s crimes ordinance states that anyone who utters, does, or prepares to do anything with seditious intention shall be guilty of an offense, punishable by a fine of HK$5,000 and two years in jail. The ordinance was issued during the period of British governance.

Is it acceptable to advocate for something that is against the constitution? Or, as multiple experts who believe that freedom of expression is not absolute have said, are these pro-independence advocates crossing the border of protected speech?

The Rule of Law, a Shaking Cornerstone

Hong Kong has long been proud of its rule of law, touting it as one of its greatest strengths. The Hong Kong government has printed the following in various promotion pamphlets:

The rule of law is one of Hong Kong's greatest strengths. It is the cornerstone of Hong Kong's success as a leading international commercial and financial center, providing a secure environment for individuals and organizations and a level playing field for business.

In a survey done by CUHK in 2016, more than 50 percent of the 1,010 Hong Kong participants believed that judicial independence is the most important value a society should uphold, higher than other values including freedom of the press, social harmony, democratic development, economic development, and national interest.

Thus, when independence advocates contradict the constitution and potentially violate the crimes ordinance, it seems that the best, and the last, resort to resolve the dispute is to go to court.

Yet Hong Kong’s courts and government are heavily criticized by opponents who claim that Hong Kong is a puppet controlled by Beijing. This criticism is not necessarily groundless. The case of Joshua Wong is illustrative of these critiques.

Wong, who rose to fame for his leading role in the 2014 Umbrella Movement, was recently sentenced to six to eight months in prison for illegally storming the Hong Kong government headquarters compound during the 2014 unrest. Two other student leaders, Alex Chow and Nathan Law, were also given prison time. 

Originally, the three had been sentenced by the court to community services and a suspended jail term. But the Hong Kong government pressed for harsher punishment at a higher court, which resulted in the jail sentences and rendered the three ineligible for public office for five years.

Critics of the Hong Kong government view the three young leaders as martyrs, victims of Beijing’s power channeled via the Hong Kong government. Indeed, this argument is shaking the cornerstone of Hong Kong.

In an interview before the judgment was made, Wong said, “The government wanted to stop us from running in elections, and directly suppress our movement… There’s no longer rule of law in Hong Kong, it’s rule by law.”

The Hong Kong Department of Justice said that it reviewed the appeal process the government had followed, which resulted in the sentencing, and rejected the allegation that the case was politically motivated.

In the ruling, Court of Appeal Vice President Wally Yeung Chun-kuen wrote:

Our society will descend into chaos if people recklessly break the law and the public order in the name of exercising freedoms. It will not only cause tremendous negative impact on the society but make others unable to exercise their freedoms. If such a situation is not effectively curbed, all talk of freedom and the rule of law will be empty. Such an unhealthy trend is taking place in the Hong Kong society in recent years.

This argument has not swayed the government’s critics.

Hong Kong is not alone in confronting a series of difficult questions: What are the boundaries of protected speech? When free speech and the rule of law collide, which is supreme? This is further complicated by the unique “one country, two systems” arrangement that rules Hong Kong. The incident on Hong Kong’s campuses is merely the latest example of the ongoing debate.