What is Article 23 and Three Implementation Scenarios
|Trey Menefee||Jun 10, 2020||2||2|
[note: I’ll continue my usual practice of publishing a serviceable draft first, then cleaning it up and adding links tomorrow.]
There was a brief moment that lasted about a month, from late January until the end of February, where it looked like COVID19 might be Xi’s “Chernobyl Moment.” They were caught red handed trying to suppress news of a new coronavirus which, again, predictably led to the virus running out of control. Xi was essentially unseen during that time. Then something surreal happened: by the end of March, COVID was clearly under control in China but had exploded in Western countries largely due to making the same mistakes China did in early/mid January.
In whiplash-inducing speed, the CCP went from being on its knees with an epidemic and expecting to be blamed for the coverup by its own citizens to being the only country other than South Korea that contained a major outbreak. And the only nuclear-armed state not on track to wage a losing battle for the next year with this disease. Emboldened by the sudden change in fortunes, they started saber rattling against Taiwan and getting more aggressive with South China Sea neighbors again. They were going to do some kind of power grab while the world was distracted and sick.
In early May I was asked if I had heard any rumors that Beijing was planning to force Article 23 on Hong Kong during the June “Double Sessions.” I had not but thought it was plausible. Yet it didn't dawn on me then what was happening until weeks later: Hong Kong would be the Party’s pandemic power grab. They weren’t going to invade some disputed reef in the South China Sea, they were planning a kill shot on Hong Kong’s One Country, Two Systems…. and there would be virtually nothing anyone could do about it.
Article 23 had long seemed dead in the water here. Our first Chief Executive tried to pass it in LegCo in 2002-2003. Key members of his Executive Council resigned, an important pro-established party defected, and Tung himself ‘retired’ after the largest post-Handover march in Hong Kong until 2019. Because the wording of Article 23 says the Hong Kong government “shall, on its own” create this ‘National Security’ legislation, there was no chance of it passing LegCo without arresting virtually all of the opposition first.
That would take time, a year or two at least. In the meantime, their front groups like the DAB would take a battering in this year’s LegCo elections if forced to campaign on Article 23. Surprising everyone, including their own allies, Beijing decided to do it in a transparently illegal way. Annex III of the Basic Law is set aside for Beijing to add laws to our Basic Law so long as they’re “confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region.” It’s where they posted the official date of National Day and policy arrangements for diplomats.
The plan was to sneak the most controversial legislation in Hong Kong’s history into an Annex of the Basic Law set aside for an entirely different, and very specifically outlined, purpose. So long as they consulted the relevant committee and Carrie Lam’s regime agreed to do their bidding, it would become law as soon as it was published in the Hong Kong SAR Government Gazette. Carrie Lam agreed despite having no idea what was in the legislation they’re now cooking up and no input.
… so here we are a little over a month later and the British government has already decided to allow almost half of the Hong Kong population to migrate to the UK as refugees. I am now very seriously considering leaving Hong Kong in the next few months.
What is Article 23?
The CCP added Article 23 to both the Basic Law of both Macau and Hong Kong, mandating that the SAR governments enact laws criminalizing treason, sedition, subversion, and secession. Each of the four categories is framed within a broader context of ‘national security,’ criminalizing attempts to overthrow or destabilize the Central People’s Government. Both the propaganda and surface readings of proposed and enacted legislation makes it seem like generic anti-terrorism laws found in most of the world.
For example, it is already illegal to blow up a bridge in every country but the act is more harshly penalized if a political motive can be established versus, say, just finding the bridge ugly. Like anti-terror laws in the West, it criminalizes both the acts of terrorist violence and larger support networks, plots, and groups behind it. Beyond criminalization, both terrorism and China’s understanding of ‘national security’ militarizes the threat by carving out legal exemptions in making the tools of state surveillance broadly and easily available to the agencies countering the threat.
There would be little controversy about the National Security Law (NSL) if it was only designed to target people engaged in attempts to violently overthrow the CCP. Governments around the world would not be planning to accept huge numbers of Hong Kong refugees if the CCP merely meant to add tougher sentences to anyone caught attempting to bomb or shoot their way to Hong Kong independence. Nor would there be much complaint about enacting laws to uproot an imaginary network of CIA agents training and paying Hong Kong protesters to throw Molotov cocktails and set Chinese banks on fire.
There is a small chance that the paragraph above is as far as this legislation would go. But this is not what was proposed in Hong Kong during the failed 2003 legislation, it would likely get through LegCo easily if the scope were that limited, it is not what was passed in Macau; it is also not how Chinese propaganda, CCP cadres, and their local allies are talking about the NSL. What they describe sounds like they believe it to be a ‘final solution’ stamping out protests, activism, opposition parties, and wide swaths of political speech. Even more alarmingly, they are openly saying that Ministry of State Security agents - the people who disappear Chinese lawyers and kidnapped HK booksellers - will officially be setting up shop in Hong Kong after decades of operating in the shadows.
What really sets the origins and current rush to implement Article 23 apart from anti-terrorism laws in democratic countries is that liberal values like democracy, self-determination, freedom of speech and association, and globalized interconnectivity are the ‘national security’ threats. A recent speech by Wang Zhimin laid out the CCP’s rationale:
The only legitimate reason for opposition to the HKSAR govt and CCP are materialist conditions like extreme inequality and no upward mobility. Since this is not the case in Hong Kong, and was not a stated demand, ideological contention with the state can only be a larger plot to overthrow the CCP.
Hong Kong activists calling for genuine universal suffrage are trying to establish an anti-Party Hong Kong government as a base within China’s borders that will be used by hostile foreign forces to launch astroturf ‘Color Revolution’ attempts within the Mainland. It is therefore subversion, if not borderline treason.
Localists, political parties, and activists calling for self-determination have always been a crypto-independence movement. Just as nationalist movements within the USSR led to it’s quick collapse, separatism is an existential threat to both the Party and sovereignty of the Chinese state.
What makes any analysis of the imminent National Security Law (NSL) so challenging is that no one knows what’s in it or even what has been written into it so far. Beijing’s proxies in Hong Kong claim not to have even known it would be on the National People’s Consultative Conference’s agenda until they arrived on May 21st. When asked for specific details like whether the law would be retroactive or whether those charged under the new NSL might be extradited to China, we are told either that they don’t know or not ‘worry about that... yet.’ No one even seems to know when the NSL will be promulgated into law. After the Two Sessions, the NPCC Observer website was confident that the process was already too rushed and the legislation wouldn’t be enacted until the end of July. With the world (and US in particular) so distracted now, conventional wisdom recently concluded it will arrive as early as the end of the month.
Given the current uncertainty, we can only contemplate a range of possible outcomes. I will describe them here from best- to worst- case scenario. Rather than trying to assign some quantitative probability to each scenario I will describe the contexts that make them either more or less likely than the alternatives.
NSL will primarily be used as a deterrent to violent protests in the best case scenario and NPCC Observer is correct in predicting that only subversion and sessession laws will be implemented for now. It will not be retroactive, but will double or triple the sentences of anyone who would today be charged with ‘rioting.’ Currently, rioting charges carry a maximum ten year sentence but is often half that for those who plead guilty. Under NSL, the charges would be upgraded to subversion or secession. In the Macau version of NSL, sentences would range from 10-25 years.
In this scenario the heaviest charges are aimed at any protester engaged in vandalism, arson, or throwing molotovs or bricks at police. Standards of proof would likely be substantially lowered to rope in anyone suspected of planning to do things like that or caught near those scenes. In this scenario MSS would be surveilling, detaining, interrogating, following, and harassing many of the nine thousand already arrested in 2019 to infiltrate Telegram groups and create an informant network.
Within this ‘best case’ scenario we should assume the CCP will give themselves enough legal flexibility to try to put high profile dissidents like Joshua Wong and Jimmy Lai in jail for decades.
This is a “kill a chicken to scare the monkeys” scenario. For this scenario to be correct, it would require:
The CCP to believe that a few hundred draconian jail sentences to [real and alleged] violent protesters - likely pushed through court much quicker than riot cases are now - would sufficiently deter any repeat of the fiery scenes from 2019. Perhaps more broadly, they might believe that arresting presumed ‘leaders’ would be a sufficient ‘chill factor’ quieting dissent down more broadly.
The CCP to be comfortable continuing to allow as much respect for political speech, like waving Hong Kong independence flags, as exists now. Even handing out a pro-independence pamphlet would remain legal so long as it doesn’t advocate violence.
This scenario includes all of Scenario 1, but adds three dynamics: (a) the law is retroactive and (b) includes sedition, and (c) foreign influence statutes are threatened but not yet enacted. Making the law retroactive would expose most of the 9,000 people already arrested at Hong Kong protests liable to heavier sentences and lower legal standards. The CCP has on multiple occasions expressed frustration with the Hong Kong legal system (its speed, conviction rates, bail, evidentiary standards, etc). They have also stated repeatedly they want to see more people jailed with heavier sentences.
In this scenario, those charged with ‘rioting’ would face the heavier sentences delivered more quickly described in Scenario 1. In addition, those charged or being investigated for non-violent crimes now could be exposed to sedition charges. To wit, someone thrown in jail for two days and released now or charged with illegal assembly (maximum one year sentence, often reduced to community service) could face two to five year prison sentences. Hong Kong Independence flags, speech, and written material are prosecutable.
That alone would open the possibility of having nearly ten thousand people associated with the protest in prison, perhaps as early as the end of the year. The number expands dramatically when you account for all the people stopped by HKPF who had their ID cards recorded but weren’t arrested. Within this scenario we should include old enemies being targeted as well: Falun Gong, Mainland dissidents hiding in Hong Kong, and anyone involved in Operation Yellowbird that evacuated Tiananmen survivors.
In this scenario NGOs, activists and groups that take foreign donations, and foreign media are intimidated but not arrested. Laws criminalizing nearly any foreign help or assistance are threatened but not yet enacted. In the meantime MSS agents would be interrogating, surveilling, and investigating to build future cases on anyone who would be caught up in such a law. They avoid the diplomatic outrage over arrests and instead rely on harassment and fear to convince them to leave Hong Kong. Specifically, any opposition leaders who appealed to the American government for help would be high on this list.
For this scenario to be correct requires premises in Scenario 1 to be true, but adds a lot more political prisoners and a wider array of criminalized behavior. Assume something like ten to twenty thousand imprisoned within a year of being enacted. The participation risks for being caught at any protest would rise dramatically. In contrast with the next scenarios, which get progressively worse, the CCP would likely prefer refugees to prisoners. This is a scenario where people like me would likely actively plan to leave Hong Kong.
In keeping with the theme, Scenario 3 adds to the scope of the previous scenario. In this version groups like Amnesty International and Human Rights Watch are deemed illegal. Foreign journalists in Hong Kong are subjected to the same pressures, surveillance, intimidation, and harassment as their colleagues across the border. A large array of activists, political groups, media groups, and expatriates would likely find themselves under investigation, including finances audited, as MSS tries to sniff out evidence of a Western plot that doesn’t exist.
For local protesters and activists, the entire 2019 movement is declared subversive and/or seperatist. Chants, artwork, slogans, and songs glorifying the ‘The Revolution of Our Times’ would be declared seditious. In this scenario, someone arrested for singing Glory to Hong Kong risks years in prison. The same would go for posting protest-themed artwork on social media. However, the law is mostly not applied retroactively for those who haven’t openly espoused pro-independence views.
Nearly every politician in the opposition is imprisoned or has already fled Hong Kong in this scenario. Though many face various charges already, none of them will be out on bail while their cases are pending. Apple Daily is shuttered and the remaining media heavily self-censor. Because of the real name requirement, pro-protest Facebook posts and groups disappear. Hong Kong Twitter quiets down and self-censors. Even a retweet or like could bring criminal charges.
For this scenario to come true, the CCP must be willing to face the diplomatic fallout of eradicating Hong Kong civil society and all organized opposition, hundreds of thousands of refugees, and potentially tens of thousands of political prisoners charged with crimes previously only seen in the Mainland. Yet they will likely accomplish just that: their vision of a ‘pacified’ Hong Kong.
dr. trey 黑命無價 @ComparativistIf @NPC_Observer is correct about a limited initial NSL rollout, and if it’s written like Macau’s Art 23/NSL is, the net effect is that someone caught doing this is would now be exposed to an _additional_ criminal charge that carries a 10-25 year sentence https://t.co/fNg1mwjtb9
Anything worse than Scenario 3 is marching Hong Kong closer on a path towards Xinjiang and Tibet. Were I to guess, right now I think the scenarios aren’t mutually exclusive and would likely arrive sequentially. This is to say Scenario 3 is coming on an uncertain timeline, but it might start as Scenario 1 in August. Wang Zhimin’s descriptions of what the CCP expects from this law sounds closer to Scenario 3 than 1, but perhaps even he realizes Hong Kong does not have the prison capacity for tens of thousands of political prisoners.
Any rush to Scenario 3 (or worse) would likely lead to one of the worst outcomes short of internment camps: installing Chinese judges in new National Security Courts to radically speed things up. Even worse would be sending prisoners to the Mainland after prisons here reach capacity. All of these things are not just possible, but have been either hinted at or not ruled out.
An important context to note is that trust is increasingly eroded as these scenarios get worse. As more people are exposed to draconian sentences for activities now considered mundane, so grows the incentives to escape the crackdown’s dragnet via collaboration, infiltration, and generally pointing fingers at other colleagues, friends, or family. This is a world where a teenage ‘rioter’ facing a twenty year jail sentence goes home if only they identify which teacher ‘brainwashed’ them.
At present, there isn’t any light at the end of the tunnel. This is really happening.