By William Nee
Ahead of the 32nd anniversary this year, Hong Kong Chief Executive Carrie Lam must not let the memory of the Tiananmen Massacre die on her watch, and the government should retract its effective ban on this year’s planned candlelight vigil in Victoria Park.
Every year since 1989 anywhere between 100,000-200,000 people have gathered there to commemorate the hundreds, if not thousands, killed by the People’s Liberation Army for demanding democracy and human rights in China. People light candles and pay tribute to victims and families, particularly the Tiananmen Mothers, whose loved ones died on June 3 and 4 that year.
The peaceful assemblies have consistently demanded, year after year, an investigation into the massacre, accountability for the perpetrators and state compensation for victims or their families.
Hong Kong’s annual commemoration has taken on enormous importance as one of the very few places on Chinese soil hosting public expressions of justice and hope for Tiananmen victims and pro-democracy activists on the mainland.
The Chinese authorities have systematically suppressed calls for accountability, and censored information on the Tiananmen massacre on the internet and in history books. Mainlanders who tried to commemorate victims or raise public awareness have been jailed. Each year, people from the mainland travelled to Hong Kong to attend the vigil in the park.
Overreach of state power
In April, however, the Leisure and Cultural Services Department suspended applications to use public facilities “across the board” and said it had informed the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, which organises the vigil each year. Thus, 2021 marks the second year in a row in which the park vigil will not take place, ostensibly due to Covid-19 precautions.
Hong Kong has a low case count and science shows that outdoor transmission of the virus is rare. The decision to ban this year’s vigil hints at an overreach of state power in suppressing the peaceful exercise of free expression. Instead, the government could require organisers and participants to adopt Covid-safe measures, such as masks and social distancing.
What is more disturbing is that authorities refuse to clarify whether the vigil will be allowed to go ahead after the pandemic is over. This raises fears that such forms of public expression, directly aimed at authorities in Beijing, will no longer be tolerated in Hong Kong.
Persecution of activists
After democracy activists went ahead with an unauthorised vigil on June 4 last year, the government quickly sought to arrest and prosecute the organisers.
Even though the event was peaceful, over 24 participants have so far been charged. Joshua Wong was sentenced to 10 months in prison. Judge Stanley Chan said the seemingly long sentence should “deter people from offending and reoffending in the future.”
The harsh prosecution of activists related to the vigil in 2020, amid a widespread crackdown on civil liberties under the National Security Law, have made it clear that freedom of expression, peaceful assembly, and freedom of the press have become targeted as criminal offences.
Carrie Lam has dithered on the legality of the Tiananmen vigil, saying it’s “impossible” for her to say. “My answer will be, we will act according to the law. It depends on which law it is and it is not the chief executive’s job to interpret the law, that is the court’s job. And then, we have to look at the evidence and the defences,” she said.
Some people had “abused” the right to peaceful assembly, she added.
While there were many violent protests in Hong Kong in 2019, there is no evidence in 30 years of holding Tiananmen vigils in Hong Kong that any such events were ever marred by violence.
More importantly, the International Covenant on Civil and Political Rights still applies to the city. And Article 27 of the Basic Law states: “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.”
Authorities thus have an obligation under both international and domestic law to respect the right of peaceful assembly.
One of the common chants during the Tiananmen vigil is “end one-Party rule”and it is feared that this phrase would be illegal under the national security law. Former justice secretary Elsie Leung said that chanting the slogan “may not necessarily violate the law, but one has to look at the evidence, what was said and done beforehand and afterwards.”
Tian Feilong, an associate professor at Beihang University’s Law School in Beijing and director of the Chinese Association of Hong Kong and Macao Studies, a semi-official think tank, has called for the slogan to be viewed as evidence of “inciting subversion of state power.”
However, according to international standards, such slogans advocating non-violent change of a government should be expressly permitted under national security legislation. The most authoritative standard for assessing freedom of speech in the context of upholding national security is the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, Freedom of Expression and Access to Information.
Under the category of “protected expression” it states that:
Expression which shall not constitute a threat to national security includes, but is not limited to, expression that:
(i) advocates non-violent change of government policy or the government itself;
(ii) constitutes criticism of, or insult to, the nation, the state or its symbols, the government, its agencies, or public officials, or a foreign nation, state or its symbols, government, agencies or public officials;
In other words, international standards, in countries to whose jurisprudence Hong Kong courts would refer, clearly protect even the most controversial statements made at peaceful demonstrations. And history shows there has never been a risk of violence stemming from the annual Tiananmen vigil in Hong Kong.
My colleagues and I at Chinese Human Rights Defenders call on the Chief Executive to fulfill her legal obligations and respect the right of Hongkongers to take part in Tiananmen commemorations, even under Covid-safe measures this year. Affirming or denying the human rights of people in Hong Kong will speak volumes about the true state of the rule of law in the city. But more importantly, a complete ban on the vigil would be morally wrong and violate the right to free expression and peaceful assembly protected under the International Covenant on Civil and Political Rights.
The Hong Kong Alliance in Support of Patriotic Democratic Movements of China, in acknowledgement of the ban on the vigil in Victoria Park, has urged people to “light a candle wherever you are” at 8 pm on June 4. Chinese Human Rights Defenders urges everyone to do the same.
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