A day and a night in HK

My account of the 6 to 7 November demonstrations against the NPCSC interpretation of the Basic Law

A lot of people, both employed and “citizen” journalists, did a fantastic job covering the second demonstration live on Twitter. (Check out @goofrider @karenklcheung @lostdutchhk @Anon_Snufkin @aaronMCN @trey_menefee @kevinluikf @Lianainfilms @2legit2trip @HongKongHermit @krislc @amietsang @stegersaurus @alanwongw) SCMP also has a good article about the demonstrations which comes as close as any other to trying to put the whole narrative together, and Hong Kong Free Press had a good live blog . Between them, they provided excellent coverage, but I thought a fuller narrative account might be of some use as well. Thus, what follows.

The day started around 3 in the afternoon at Luard Road in Wan Chai. Civil Human Rights Front had called a march against the National People’s Congress Standing Committee interpreting the HK Basic Law. (For an explanation of what that concerns and why it’s been met with such alarm in HK, see the end of this account.) The route was from there to the old Legislative Council building in Central. (The new Legislative Council building is part of the new HK government headquarters in Admiralty, and Legco moved there in 2011.) Many groups gathered in Southorn Playground before the march began.

The only “localist” group I noticed there was Youngspiration, whose two Legco representatives, Yau Wai-ching and Sixtus Leung, are at the heart of the current controversy. Otherwise, the make-up of the march was old-style pro-democracy, with most of the pan-democratic parties present, including Democratic Party and Civic Party. The march wasn’t one of the “mega-marches” of hundreds of thousands we have seen through the years in HK, but it was substantial. SCMP eventually estimated 13,000, and SCMP usually errs on the low side. I would guess somewhere around 15,000. Of the dozens of people I spoke to, I didn’t meet a single one who was pro-independence. Quite a few (mostly older) people were critical of Yau Wai-ching and Sixtus Leung’s oath-taking, and several went out of their way to emphasize that they didn’t support them but they were even more strongly opposed to the interference of the Communist Party in HK affairs and that was why they’d come.

I was near the front of the march throughout and didn’t see what went on behind. The march was fairly uneventful, winding down Queen’s Road, until it got to the intersection of Queen’s Road Central and Ice House Street. At that point, the march was to turn right into Ice House Street to proceed to the old Legislative Council building, its destination, about a block away. Demosisto, which had been at the front of the march, immediately split into two groups, with one group peeling off to continue up Queen’s Road Central and the other following the scheduled march into Ice House Street. Of the leaders, Nathan Law and Agnes Chow went up Queen’s Road Central, and I lost Joshua Wong in the crowd and assumed he continued to the old Legco building, though he later showed up at the Liaison Office. League of Social Democrats wasn’t far behind Demosisto, and they too continued up Queen’s Road Central. And not far behind them was the Labour Party and the Hong Kong Confederation of Trade Unions, which joined the Queen’s Road contingent. They made up the nucleus of the group intending to go to the Liaison Office, but there were hundreds of unaffiliated others as well, eventually maybe somewhere between one-thousand and two-thousand over all.

This is not an unusual practice of demonstrators in recent years, to break away from the “official” demonstration near the end and go to the Liaison Office. Demosisto (and its precursor Scholarism) and LSD are especially practiced in this art. And the police have almost a ritual approach. Early in the march, they bring out their yellow banner and declare the march an unlawful gathering. The demonstrators proceed to ignore police warning, and the police eventually accommodate the march, at least until the Liaison Office, and then what the police decide to do depends on the situation. That’s what happened this time as well. This time, though, significantly more people than usual decided to continue the “unauthorized” march.

The police declared the march an “unlawful assembly” under the HK Public Order Ordinance. International authorities on human rights law including the United Nations Human Rights Committee and Human Rights Watch have repeatedly for years criticized POO as being written in such a vague way so as to leave itself unduly open to police interpretation, and this, in turn, they argue, could lead to unreasonable restrictions being placed on freedom of assembly. In recent years, especially since the occupations of 2014, various pro-democracy groups have increasingly ignored the terms of the POO, which say that if you intend to organize an assembly in which you expect more than 30 people to participate, you must notify the police and receive a notice of no objection from them in order to go ahead. The official justification for this is that police need to make arrangements for traffic and public order, but the response to this is that people should have to do no more than notify the police, not await a notice of no objection from them, and there should be allowances for spontaneous gatherings as well. In other words, spontaneous gatherings shouldn’t be immediately “outlawed”, which appears to have become an HK police habit. The UNHRC is actually the body legally charged with monitoring compliance with the International Covenant on Civil and Political Rights, to which HK is party. Even though it has repeatedly expressed concerns about POO, the HK government has made no effort to amend it to address the UNHRC’s concerns. This raises the question of how lawful POO is in light of international law, and it’s one reason the Department of Justice is relatively reluctant to prosecute demonstrators arrested on unlawful assembly charges.

The march which occurred on Wednesday evening against a (at the time) possible NPCSC interpretation of the Basic Law did not apply for a notice of no objection, and ahead of time, march organizers warned participants of this and that they might get arrested. As it turned out, none did.

I was surprised that HK police didn’t appear entirely prepared for the “unauthorized” procession, given the high tension in the city surrounding the NPCSC interpretation of the Basic Law. Ever since the 2014 occupations, if anything, HK police have had a tendency to come “overprepared”, to put it mildly, for possible disruptions to “public order”. Still, the police accommodated the march all the way to the Liaison Office.

And then another part of the ritual began: Police routinely block marches, even authorized ones, right before they get to the Liaison Office on Connaught Road. Then they decide what to do. If the march is small and authorized, they often open a corridor, a bit like a gauntlet, and allow demonstrators to pass by the Liaison Office in single file. If it is not, they often refuse to allow demonstrators to pass. For years, various groups have complained that the area around the front of the Liaison Office has been designed so as to constrain the right to protest there. Raised flower beds have been erected, and police are always located there. When a demonstration comes, police set up barriers that make demonstrators feel like a cattle going through a chute. It’s safe to say that there are few places in HK as sensitive when it comes to demonstrations as the Liaison Office and the police are under strict orders to ensure nothing undo happens there. The police have often been overzealous about arresting people there. When Liu Xiaobo won the Nobel Peace Prize in 2010, a demonstrator was arrested for “assaulting” a security guard when spray from a bottle of champagne she opened inadvertently hit the guard. She was not prosecuted.

This time around, there was virtually no chance the police would let the demonstrators pass. On top of being “unauthorized”, the march was simply too large to take the risk. Most of the time when police refuse to allow demonstrators to pass, I think it’s unreasonable, but this time, they might have been wise. At any rate, quite often when this occurs, demonstrators eventually leave. This time, they didn’t. They stayed put and stood firm. There is a large penned area to the east of the Liaison Office on Connaught Road that is set up to accommodate demonstrators. This area was filled and demonstrators were backed onto the stairs and pedestrian bridge at the corner of Connaught and Western Streets, and spilled down around the corner onto the Western Street sidewalk.

At a certain point in the evening, some demonstrators who were penned in attempted to step out into Connaught Road. Police reacted swiftly and aggressively, unleashing massive amounts of pepperspray, that hit not only some of the people stepping out into the road but also a great many others simply standing in the penned area nearby. Many people, including journalists, were hit. Many reported that their skin stung for hours afterwards. Some reported their phones ceasing to work after being hit. Avery Ng, one of the leaders of LSD, was arrested at this point, though it isn’t clear what exactly for, and one other person was arrested. As far as I know, these were the only two arrests of the night, remarkable given what was to come.

Not long after that, some demonstrators went to Des Voeux Road abutting the Liaison Office on the back side, and appeared to occupy the road there. These demonstrators were not ones who had participated in the “official” march earlier in the day. Quite a few wore masks and protective gear. They appeared to be more affiliated with “localist” elements and had come directly to the Liaison Office.

Eventually, more and more demonstrators on Connaught Road, attracted by the commotion on Des Voeux Road and sick of being penned in, made their way into Western Street and Des Voeux Road, and the “occupation”, if that’s what it should be called, began, since Western Street and Des Voeux Road were effectively closed to traffic from this point on. A major tram line runs on Des Voeux Road, and eventually more than a dozen tram cars were blocked from about the Liaison Office back nearly two blocks to the east on the road.

At this point, I estimated there were somewhere between 3,000 and 4,000 demonstrators, and this was probably the peak in terms of numbers. Quickly a stand-off commenced between police and demonstrators on Des Voeux Road, with several meters between them. Demonstrators had their umbrellas ready. Police tried to disperse them with pepperspray, but to no avail. At the same time, once most of the Connaught Road demonstrators had gone into Western Street and Des Voeux Road, police pushed up into Western Street and set up barriers there. So there were at this point police cordons on Western Street and Des Voeux Road, but still there were not terribly many police visible, in the hundreds yes, but I would have expected more. It appeared that what these police intended to do was keep the situation stable until reinforcements could arrive and protect the Liaison Office at all costs. Quickly, a kind of stalemate ensued.

Nathan Law of Demosisto spoke to the crowd. He seemed ambivalent about remaining, asking what could be gained by occupying the road. Many voiced their displeasure with his speech. I was a bit puzzled too. It made one wonder what Demosisto thought it was doing in the first place going down to the Liaison Office. Either it had some secret plan that was thwarted by the police not allowing demonstrators to proceed past the office, or it just thought it would go there and then leave. At any rate, as so often in the past when someone expressed skepticism about occupations, it wasn’t as if Nathan seemed to have a better plan to propose.

And so the occupation continued. There weren’t really any leaders, and few people spoke on loudhailers to the crowd. Nathan said he wasn’t against people staying or more people coming but emphasized that safety came first and if police attacked with tear gas, people should leave. Hardly a call to arms.

Behind this reluctance on his part and others to lead was a sort of tension amongst the demonstrators. To put it simply, it was between the more right-wing localist sorts (who tend to speak more in terms of an “HK nation” if not independence) and those who advocate self-determination. No localist groups (such as HK Indigenous or Civic Passion) were “officially” there by name, except perhaps Youngspiration. At the same time, no traditional pan-democratic parties, except perhaps Labour Party, were there either, and the vast majority of those gathered were young people.

One thing that struck me was that once this scene had been set, not that many more people arrived to add to the ranks of the demonstrators. When I asked demonstrators about this, I got two answers. The first was that it was Sunday evening and people had to work the next day. The second, mostly from the leftish, self-determination sorts, was that people like that and the traditional pan-dems were afraid of being “used” by localists, or of being drawn into a situation in which demonstrators used violence. This reflects the ambivalence of many pro-democracy types I met on the march who, on the one hand, don’t agree with the oath-taking of Yau Wai-ching and Sixtus Leung and don’t support HK independence, but, on the other, are appalled by the Communist Party’s intervention. At any rate, this probably explains the fact that the crowd did not get significantly larger from this point on. Indeed, one of the more frequent slogans shouted at the demonstration was “HK independence!” Though it was only a certain portion of the demonstrators shouting this, I could imagine there were a good many pro-democracy people who wouldn’t want to be present at a demonstration where that was one of the main shouts. There have been many conspiracy theories about for a good long time to the effect that the Partystate and HK government are deliberately stoking the independence flame in order to justify a heavier crackdown, and many in the pro-democracy movement are leery of being manipulated.

By this point, both publicly, at a press conference, and at the demonstration, police were alleging that people were taking bricks from the pavement and warning against doing so. Perhaps they intended to stress that this was their bottom line, and to warn that if there was any brick-throwing, there would be a hard crackdown. But they may have also wished to smear the demonstrators as “violent” and portray the situation as on the verge of “riot”, evoking what happened in Mong Kok during Chinese New Year on 8 and 9 February.

That couldn’t be further from the truth. Perhaps some people did take bricks from the pavement, but if so, I didn’t see it though I surveyed the whole area several times over several hours and didn’t see a single demonstrator with a brick. So if they existed, they were a tiny minority. Police also mentioned demonstrators potentially using bamboo poles as offensive weapons. Again, I didn’t see any bamboo poles, and if some had them, again, they had to have been a tiny minority. The vast majority of demonstrators were entirely nonviolent and were exhorted repeatedly by other demonstrators to remain so. I did see some of the “localist” types throwing plastic water bottles at police when the latter charged. I repeatedly asked them not to. Because I didn’t think a principled argument for nonviolence would go over that well with them, I told them that if they were caught, the police and Department of Justice would do their utmost to prosecute them for assaulting officers and try to get them jail time, whereas otherwise, there was little the police could charge them with that would stick in a court of law. Plastic bottle throwing continued into the night, though. I personally am against it because I believe in resolute nonviolence, but it is also stupidly ineffectual. It also gives the police license to take actions they otherwise are not justified in taking and an opportunity to brand demonstrators as “violent”.

A little bottle throwing happened when police formed a cordon at the top of Western Street, above the police station and came partway down the street. This was a little after 10 pm. As it turned out, the purpose of this appeared to be partly to allow more police to enter police station headquarters through a gate on Western Street. The other intention was to enclose the demonstrators on three sides. Since police left Des Voeux Road to the east unblocked, from this point on, the police tactic became clear: to eventually force demonstrators down Des Voeux Road to the east. But still, at that point, there were not many police visible and they hadn’t the numbers yet to conduct the operation.

So everyone just stood around, waiting for something. For what exactly? For the police to take action. I was struck that the demonstrators didn’t really seem to have any ideas or plans for where to go from there. Now that they were in the road, what should they do? And this was the purpose of the police, to neutralize. The police appeared to take their sweet time getting ready to clear, in the hope that the demonstrators might trickle away of their own accord. Only a few did, but at the same time, the crowd was not growing at that point.

Police appeared to wish to have many options at hand. By this point, virtually all police were wearing riot helmets with clear plastic visors pulled down over the faces. The police on the frontlines held two-meter-high clear plastic shields. They had an array of devices to shoot pepperspray. They brought in dogs. Some had tear gas rifles. Some people speculated that some of these rifles were to shoot bean bags of pepperspray. And it appeared there were also some rifles that might have contained rubber bullets or even live ammunition. (I am no weapons expert and base this observation on the fact that the barrels of rifles were narrow, unlike the barrels of the tear gas rifles, which are fat. NOTE: I’ve breen told the narrow-barreled rifles are paint guns for marking demonstrators. To my knowledge, they’ve never been used before by HK police.)

Shortly after midnight, Nathan Law and Baggio Leung both called on demonstrators to move towards Central, given that their position was not “advantageous”. Even before making that call, both had expressed some ambivalence about the gathering, Baggio more in the sense that he worried there were just too many police there, Nathan because he wondered about the efficacy of the street occupation.

Around 12:30 am, police began to move in, pushing from three directions. At this point, in the lead were the so-called “raptors”, a unit of blue-uniformed officers from the counterrorism and airport special unit who had a reputation for being especially aggressive if not vicious. They had been used to clear Mong Kok on 26 November and Lung Wo Road on 1 December during the 2014 occupations. And they used a similar technique this time, pushing rapidly from three directions and forcing demonstrators down Des Voeux Road to the east. Demonstrators did not resist. I was a little surprised that demonstrators didn’t make alternative plans to occupy streets elsewhere. A little while later, most of the main groups at the protest, namely Demosisto, the Labour Party and Baggio Leung and Yau Wai-ching called on people to go home, and this appeared to take most of the spirit of struggle out of the demonstration, if it wasn’t already dissipating of its own accord. Police continued to push demonstrators down Des Voeux Road over the course of more than two hours, eventually going as far as Bonham Strand West. By that point, it was nearly 3 am, and there were only small pockets of demonstrators remaining.

While police were resolute, it appeared they were trying their best not to resort to actually clubbing demonstrators with batons, as they had done frequently in the past, and also to avoid arrests. As noted above, the two people arrested in the first police pepperspray attack earlier in the evening were the only two I heard of the whole night. The police’s main objectives appeared to be to keep people away from the Liaison Office and clear the streets.

A brief explanation of what demonstrators were protesting about

The National People’s Congress Standing Committee is about to issue an interpretation of the Basic Law, reportedly Article 104, which has to do with swearing oaths upon taking office. The interpretation will almost certainly seek to exclude two Legco members, Sixtus Leung and Yau Wai-ching of the new political group Youngspiration, which grew up after the 2014 occupations. They won seats in the September 2016 Legco election. On the oath-taking day, most Legco members were sworn in without controversy, but the secretary general of Legco declared five oaths invalid, including those taken by Leung and Yau. Leung and Yau showed banners that said “HK is not China” and they also made changes to the written oath when they spoke it.

A huge propaganda campaign against them ensued, lead by the Partystate, the HK government and pro-Partystate political parties and the Partystate United Front in HK. The newly elected Legco president, a pro-Partystater himself, said that the two and the three others whose oaths had not been accepted the first time around could take their oaths again.

But the next week when Legco met, after two of the five retakers took their oaths and before Yau and Leung did, the pro-Partystate faction called for a quorum count and then walked out, thus ensuring there was not a quorum to hold the meeting.

The day before that meeting was adjourned, the HK government applied to the HK High Court for a judicial review, citing the Legco president and Yau and Leung as defendants, and claiming that the two should not be allowed to retake their oaths and their seats should be vacated. It was unprecedented for the HK government to essentially sue Legco. The High Court judge did not grant an immediate injunction against them retaking their oaths, but he did agree to hear the case on 3 November.

The Legco president then changed his mind and said the two could not retake their oaths until the court ruled on the judicial review brought by the government. The following week, it was the pro-democracy camp that prevented Legco from meeting by walking out in protest at the Legco president’s reversal.

And the week after that, Yau and Leung entered the Legco chamber demanding to retake their oaths, though the president had forbidden them to do so. The Legco president moved the meeting to another room, but when Yau and Leung attempted to enter there, he adjourned the meeting for the third time in three weeks due to safety concerns.

That was 2 November. The next day, 3 November, the High Court heard the judicial review. It was argued along narrow legal ground with the two sides debating whether the oath-taking was a constitutional matter for the courts to decide (the government’s position) or a matter of separation of powers and immunity of Legco members (the Legco president’s and Yau and Leung’s positions). The judge did not rule at the end of the hearing but said he would do so soon.

In the meantime, there were already rumblings that the NPCSC was going to interpret the Basic Law even before the court judgment. This would be only the fourth time overall since 1997 that the NPCSC would do so, and the first time to pre-empt an on-going court case in HK. Virtually everyone in HK who is for democracy is outraged by the intervention, which is regarded as an infringement on HK’s autonomy as well as on the independence of the HK judiciary, and thus, damaging to rule of law in HK, which in turn is regarded as one of the few things keeping HK from becoming much like the mainland.

Thus, the protests.

The pro-democracy movement believes this is yet another instance of the Partystate attempting to gain greater control over HK. For the first time ever, six candidates for Legco had been disqualified on political grounds. Then, although Yau and Leung were allowed to run and won seats, now the Partystate and HK government are attempting to kick them out, clear infringements on the already highly constrained democratic rights of the HK people: what about the rights of the people who voted for Yau and Leung to represent them?

You have the extraordinary situation of an unelected HK government and an unelected Partystate trying to bar two elected members of Legco from taking their seats. If there were ever any situation to prove — if proof were needed — that Partystate intentions in the infamous hardline 8/31/2014 ruling of the NPCSC were not to move in the direction of greater democracy in HK, this certainly does so.

The Partystate says it is a matter of national security, but Yau and Leung have not been charged with any crime, and it appears the Partystate and HK government are just making up the rules as they go along in order to suit themselves.

The NPCSC is literally above the law — any interpretation it makes of the Basic Law becomes the law of HK, and there is no avenue to contest it judicially and no way the NPCSC can be held legally accountable.

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