Free speech: Hong Kong’s new limits, new punishments, and the fate of academic Benny Tai

He’s back! Benny Tai is making waves again. No sooner had the Occupy protest effect finally faded than Professor Benny Tai Yiu-ting sparked another important political controversy. This time it’s about free speech and the nature of dictatorship.

Tai is a tenured member of the Law Faculty at the University of Hong Kong; the 2014 Occupy Movement in defence of democratic electoral reform was originally his idea. Its reverberations seem finally to have run their course with the defeat suffered by Hong Kong’s democracy movement in the special election held last month.

That election was necessary to replace four Occupy-generation Legislative Councilors who had added what Beijing decreed was too much defiant post-Occupy spirit to their swearing-in oaths after the September 2016 Legislative Council (LegCo) election.

But activists and voters did not reaffirm that spirit and defy Beijing, as they had continued to do at every opportunity after the street blockades came down in late 2014. Instead of replacing the four disqualified legislators with more of the same, voters seemed finally tired of the struggle and the promise of a directly-elected local government that had inspired the movement for over three decades.

The result on March 11 was a net loss of two LegCo seats and a sharp decline in pro-democracy voter turnout overall. Beijing loyalists claimed victory as well they might. They represent Beijing’s ideal solution for Hong Kong: popularly-elected loyalist political actors.

Undaunted, Benny Tai took the short flight from Hong Kong to Taiwan where he gave a speech that has created another storm – much as his Occupy Central idea did when it began to capture democratic imaginations five years ago. The significance for Hong Kong’s democracy movement is not so much in what he said, an academic argument phrased in hypothetical terms, or even where he said it, but in the threatening official blasts that have followed.

They have revealed that yet another of Hong Kong’s post-colonial guarantees: Basic Law Article 27 on freedom of expression, is being “adjusted,” along with Article 18 on the Hong Kong application of mainland laws; Article 26 on the right to stand for election; and Articles 45 and 68 on universal suffrage elections.

Fears evoked by last September’s “free speech movement” resurfaced in an instant. The controversy then surrounded the “Hong Kong Independence” banners and slogans that appeared suddenly on the Chinese University campus at the start of the new 2017-18 school year.

The fears arose as those demanding the right to articulate their views were confronted by angry opponents – mainland students on campus, off-campus patriotic vigilantes, and everyone in positions of official authority. The slogans, they all said, must come down because they “hurt the feelings of the Chinese people” and challenged Beijing’s sovereign right to rule.

That episode reminded everyone involved about the axiom tying free speech to dictatorship: the latter strengthens as the space for free speech narrows and punishment for disobedience increases. The mainland political system is a dictatorship and its standards were being imposed on students in charge of maintaining the Chinese University’s Democracy Wall bulletin boards.

Tensions eased as the school year got underway. But Hong Kong’s Justice Department is preparing to throw the book at Benny Tai. He faces charges stemming from the Occupy protest movement that can land him in prison for many years. Officials in Beijing and Hong Kong will be satisfied with nothing less if their thunderous responses to his Taiwan comments are any indication.

The trial is scheduled to begin later this year and Benny Tai must have calculated that he might as well be hanged for a sheep as a lamb when he decided to say what he wanted to say at the Taipei seminar.

The setting

The seminar was sponsored by a group called the Taiwanese Youth Anti-Communist National Salvation Corps. It was celebrating the tenth anniversary of its founding with a two-day event held over the March 24-25 weekend.

Others attending from Hong Kong included: one-time (1990s) radical and veteran democratic politician Emily Lau Wai-hing, now a leading member of the moderate Democratic Party; and post-Occupy activist Yau Wai-ching, who lost her Legislative Council seat in the 2016-17 oath-taking saga. This is the seat that was just won by a pro-Beijing loyalist in last month’s special by-election -the ultimate mark of defeat for the Occupy generation.

The seminar’s theme featured “five independences,” meaning five regions and ethnic groups desirous of achieving independence from the central Chinese government: Hong Kong, Taiwan, Tibet, Xinjiang-Uyghurs, and Mongolians.

The theme was sure to provoke hyperventilation in Beijing. And Hong Kong’s pro-Beijing press was ready with bio-data from the files on key members and associates of the husband-and-wife team who run the group.

The husband, Paul Lin, is reportedly one of Benny Tai’s old University of Hong Kong colleagues. The wife, May Yang, is reportedly an old friend of Martin Lee and Emily Lau, both past Hong Kong Democratic Party chairs and both identified as “traitors” in the account by Hong Kong’s Ta Kung Pao newspaper.

The husband set up the Youth Corps and together husband and wife have befriended several youthful leaders from Hong Kong’s post-Occupy generation including Yau Wai-ching, Nathan Law, Joshua Wong, and Ray Wong. The latter is currently on the lam in Europe where the long arm of Hong Kong law has yet to locate him. He is wanted to stand trial for his role in the 2016 Lunar New Year Mong Kok riot.

What he said

Despite the provocative setting, Professor Tai’s comments seemed innocuous enough, at least to those listening from a distance. Whatever else he might also have said, the selections as reported from his Taiwan speech that caused the uproar were about Hong Kong and China’s future.

Tai suggested that China would not only become a democratic country and enjoy universal suffrage, but it would allow its people self-determination (自決). Hong Kongers would be included among the people who could consider what they wanted: whether to become an independent state or participate in the creation of a federated Chinese government. He said such events would surely come to pass and in the not too distant future.

He was quoted as saying: “Among China’s many different peoples… they can decide whether or not they should establish a relationship that would allow all to join together. We can consider whether to become an independent state, or whether we can be part of a federation, or become like a part of the European Union. This is democratic self-determination, involving different peoples, everyone with an equal right to decide their own future, and this is also the way for Hong Kong’s future”.

Official responses: Hong Kong, Beijing

Hong Kong’s pro-Beijing media had been blasting the Taiwan event from day one, so the Hong Kong government’s response was actually late, and allegedly under great “pressure” from Beijing. A statement expressed shock and strong condemnation upon learning of Benny Tai’s comments, especially since they came from a university professor.

He should know that any advocacy for separating Hong Kong from the mainland violates Hong Kong’s “one-country, two-systems” governing principle and Hong Kong’s Basic Law constitution, the statement said.

Chinese officials, in Beijing and Hong Kong, followed on cue. Statements from the State Council’s Hong Kong and Macau Affairs Office in Beijing and Beijing’s Hong Kong Liaison Office said that some Hong Kongers were colluding with outside forces to advocate Hong Kong independence.

Their aim is to divide the country, in violation of its national constitution, Hong Kong’s Basic Law, and the one-country, two-systems governing principle. Such advocacies cannot be tolerated.

A few days later, with rhetorical tempers rising, the head of Hong Kong’s Liaison Office said anyone who opposed communist party leadership was guilty of criminal behaviour.

Tai initially suggested that the government should have checked what he actually said before criticizing him. So Hong Kong’s Chief Executive Carrie Lam waited a week. She said it was because she wanted to watch the YouTube video of his comments and decide for herself. But Carrie Lam now sees and hears such things with mainland eyes and ears.

She therefore rejected accusations that the government’s criticism threatened the principle of free speech. She said the two were not related. She said the government must defend national security and territorial integrity and speech that encourages independence or self-determination is beyond the pale.

Such speech is unacceptable because it goes against the national constitution and Hong Kong’s Basic Law, the authority of which derives from the national constitution.

Tai’s rebuttal

Professor Tai said he, too, was shocked by the severity of the official condemnation. It was as though he had committed a crime with his words. In fact, the only thing new about them was the setting in which he uttered them. Tai pointed out that he had presented the same ideas in Hong Kong, while lecturing and in newspaper articles without provoking any such reaction.

He repeated what he had said in Taiwan about the eventual demise of Chinese dictatorship, to be replaced by some form of democratic governance. He speculated that in denouncing his comments so forcefully, the government was preparing the public for the much-feared reintroduction of national political security legislation, as mandated by Article 23 of Hong Kong’s Basic Law.

Among other things it aims to criminalize acts of treason, sedition, secession, and subversion. The first attempt to pass such legislation was shelved after a massive upsurge of dissent in 2003.

Tai also said he feared that the strongly worded official condemnation was meant to frighten others who might want to exercise their right to speak out by discussing Hong Kong’s political future. He cited the old Chinese saying about killing a chicken to frighten the monkeys and elaborated further on his Facebook page and in countless media interviews.

He wrote that he is an ordinary Hong Kong citizen without any official position or political party affiliation either here or elsewhere. He speaks only for himself and accepts personal responsibility for what he says. Yet the Hong Kong government and some important political parties and even Beijing officials had raised a hue and cry.

He wrote that he has always believed Hong Kong to be a free society and although it didn’t have democracy, it still lived under the rule of law, and free speech for citizens was guaranteed. What he had said in Taiwan was nothing new, already published in his newspaper columns here, and others said similar things – all just some ideas about the future.

Yet just because of this, he had been fiercely criticized and Beijing authorities had asked that he be dealt with severely in accordance with the law.

He found it all very alarming. Had Hong Kong already entered the stage where words could be criminalized or at least used by others to create a chill among the public? Perhaps later, Hong Kongers would not be able to criticize and oppose the authorities, and might even feel obliged to express approval of them.

Nevertheless, he vowed to carry on peacefully promoting the cause of freedom and democracy, so that one day Hong Kong might achieve democracy. Then he would be able to say he had fought the good fight, traveled that road, and remained true to his beliefs.

He also posed some lawyer-like questions addressed to Chief Executive Carrie Lam, based on the well-known fact that he himself is not among Hong Kong’s independence advocates.

Please clarify, he wrote, how I advocated Hong Kong independence and self-determination. Is it advocacy to discuss what kind of future relationship China and Hong Kong might have? If so, does that mean Hong Kong is now limiting free speech?

Why didn’t you give me a chance to explain before criticizing me? Does the SAR government think that when exercising its authority, it’s not necessary to adhere to the principle of fairness?

In the past, in Hong Kong, I’ve said much the same thing. But the SAR government had expressed no opinion one way or the other. Does that mean my views really do not contravene the constitution and the Basic Law? So now it is only my brief comments at the seminar that have been taken out of context to elicit so strong a reprimand?

In Hong Kong, many people speak out directly and clearly in support of independence and self-determination. So why hasn’t the SAR government ever criticized them so severely? Why single me out? Is there some political reason? If so, isn’t that very unfair?

Why is the SAR government leveling so serious a condemnation at an ordinary citizen just for speaking overseas since I have never been criticized before for saying the same things in my teaching? Is it that you cannot admit your political reasons and objectives?

New boundaries, new punishments

The axiom holds. Dictatorship strengthens as the scope for free political expression narrows and punishments for overstepping the new boundary lines increase. The Beijing authorities are surely presiding over a dictatorship and they don’t welcome the suggestion that their dictatorship might one day, in the not too distant future, give way to the force of democratic change.

They are further incensed by the links some Hong Kong activists have maintained and are continuing to establish with Taiwan independence partisans.

The new boundaries are national sovereignty and China’s territorial integrity: the inviolability of the nation-state unified under the dictatorship of the Chinese Communist Party (CCP), now and forever more.

Hong Kong’s Chief Executive Carrie Lam is doing her best but she’s new to the job and unfamiliar with the logic of communist party rule. Asked to speak again on the subject during a Legislative Council question-and-answer session, all she could say about Benny Tai’s transgressions was that they had nothing to do with freedom of speech and academic discourse.

Much better at explaining the new rules is Tam Yiu-chung. He is a long-time leader of Hong Kong’s loyalist pro-Beijing community and a past chairman of Hong Kong’s largest political party, the Democratic Alliance for the Betterment and Progress of Hong Kong (DAB). He is also a member of Hong Kong’s delegation to the National People’s Congress and has just been named as Hong Kong’s representative on its Standing Committee (NPCSC).

This is the formal government authority responsible for issuing mandates and ultimatums on how Beijing wants Hong Kong to interpret its Basic Law constitution. Hong Kong is now being warned that discussion of independence is out of bounds and free speech is not an excuse for overstepping them.

Tam minced no words. He called Benny Tai a hypocrite for saying he himself did not support the idea of independence but was only discussing it as a future possibility. Tam also said there should be exceptions to honouring the principle of free speech. The exceptions are national security and social order.

Tam paraphrased an old Chinese saying to blast Benny Tai for “advertising lamb but selling Hong Kong independence instead.” The saying, about deception and false advertising, refers to the practice of luring customers with promises of lamb when only dog meat is available.

Tam Yiu-chung explained more fully in the context of President Xi Jinping’s new demands. At the annual March meeting of the NPC last month, among the changes to China’s national constitution initiated by Pres. Xi was one affirming the leadership of the CCP. The amendment has a bearing on Hong Kong, explained Tam, because Hong Kong’s Basic Law derives its authority from the national constitution.

The point was belaboured repeatedly to denounce Benny Tai and demand that he be punished accordingly. Beijing’s Hong Kong liaison office director advised all Hongkongers to accept the constitution and the leadership of the CCP as the foundation for Hong Kong’s future.

Almost all the pro-establishment members of Hong Kong’s Legislative Council issued a joint statement denouncing Benny Tai for suggesting the idea of Hong Kong independence. They said he had already caused enough trouble and should stop disrupting Hong Kong with his political schemes.

Local pro-Beijing newspapers excoriated him as an academic swindler and political crook, a wolf in sheep’s clothing, poisoning the minds of young students with his teachings, and shamelessly complaining about being harassed by patriotic vigilantes who have been trying to mobilize opinion against him with old-style revolutionary “criticism-struggle” routines.

Hong Kong’s pro-Beijing politicians said he must be held accountable. Activists and editorials called for his dismissal from the university and one lawsuit has been filed attempting to deprive him of his passport on the grounds that he has denounced his Chinese nationality.

From Beijing, the overseas edition of the official People’s Daily called on the Hong Kong government to take legal action under existing laws where a case might be made against him for seditious intent.

The message: “There is no space for so-called academic freedom where it involves so serious and great a political principle as respecting and adhering to the national constitution. Under ‘one-country, two-systems,’ there is no space for so-called academic freedom to allow Hong Kong to violate the national constitution.”

As for Benny Tai, he’s taking it all in stride. He confesses to bouts of disappointment after every setback, but then always manages to bounce back with some new idea. After Occupy, which he had envisaged as a three-day sit-down in the financial district only to see it balloon into 79 days of city-wide street blockades, he came up with Thunder-Go.

This was a plan for the 2016 Legislative Council election, intended to discourage pro-democracy candidates from their usual habit of competing against each other. The plan failed to catch on until the very end, when his online guides produced a sudden upsurge of voters for the young post-Occupy candidates. Many won only to immediately lose their seats in the oath-taking saga. He joked about the way his bright ideas always seem to get out of hand.

Now he’s embroiled in another controversy and acknowledges that the youthful idealism he helped generate is dissipating under the weight of Beijing’s heavy hand. Still, others may be giving up, but Benny Tai is not.

He has a new plan. This one is aimed at encouraging pro-democracy candidates to win more seats on Hong Kong’s 18 District Councils. These have long been held by the DAB, the pro-Beijing Federation of Trade Unions, and their pro-establishment allies.

Benny Tai knows he’ll probably be sitting in a prison cell by the time the 2019 District Councils election rolls around. But he calls himself an optimist and an idealist in search of solutions. And ever the happy warrior, his prison plans are already taking shape.

He says he has gained new inspiration from a speculative book about China’s future recently published by American academic David Shambaugh. Like many others, Tai says that for now political reform in Hong Kong is at a dead end. So he has devised an escape route, into the future where, from his prison cell, he can continue to defy the authorities. This he will do by writing a speculative book of his own about the future, exploring his new insights on the long-term prospects for Chinese dictatorship and democracy.

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