Benedict Rogers spoke at American Bar Association today: open up our doors and offer an opportunity to those Hong Kongers who wish to be citizens of the free world
Benedict Rogers, Chief Executive of Hong Kong Watch, was invited to speak at an event “Hong Kong and Citizenship” hosted by American Bar Association on 3 November 2020.
Read the full remarks below:
It’s a great privilege to have this opportunity to speak to you today, and to speak about a subject that is neither COVID-19, nor Brexit, nor the United States presidential election. I am watching developments on your side of the Atlantic with great interest, as is the whole world, but I imagine that you may appreciate having an hour away from it all to focus on an entirely different – though no less important – subject.
I say no less important because although we often describe your President – whoever holds the office – as the leader of the free world, the topic I turn to now is about a place that I describe as the frontline for the free world, the frontline in the fight for freedom against authoritarianism: Hong Kong.
Over the next 30 minutes or so I will try to present some thoughts on the following three key questions:
1. How did Hong Kong get to the point it is at today where its freedoms have been dismantled and so many of its citizens are looking to leave?
2. What are Britain’s specific responsibilities and what does its offer to Hong Kongers who hold British National Overseas (BNO) status mean?
3. What is the role for others besides Britain?
Britain occupied Hong Kong Island in 1841, during the First Opium War and was ceded by the Qing Emperor a year later. In 1860 the British expanded their colony to include the Kowloon Peninsula after the Second Opium War, and further extended when Britain secured a 99 year lease on the New Territories in 1898. Although Hong Kong and Kowloon were ceded to Britain in perpetuity, the leased area of the New Territories comprised the vast majority of the entire colony, such that it would not have been practical to have divided the territory and returned only the leased area after 99 years. Since it became clear that the Chinese Communist Party would not have extended the lease or allowed Britain to hold on to Hong Kong Island or Kowloon, negotiations began in the 1980s for the handover of Hong Kong to China in 1997.
It was Deng Xiaoping who proposed the concept of “one country, two systems” for Hong Kong, as a way of enabling China to regain sovereignty over the territory, while respecting Hong Kong’s basic freedoms and way of life. In 1984 an international treaty – the Sino-British Joint Declaration – was signed, promising Hong Kong “a high degree of autonomy, except in foreign and defence affairs which are the responsibilities of the Central People's Government”.
The Joint Declaration promised that for at least fifty years from the handover “the current social and economic systems in Hong Kong will remain unchanged, and so will the life-style. Rights and freedoms, including those of the person, of speech, of the press, of assembly, of association, of travel, of movement, of correspondence, of strike, of choice of occupation, of academic research and of religious belief will be ensured by law in the Hong Kong Special Administrative Region.”
In a Memorandum to the Joint Declaration, the UK stated that: “All persons who on 30 June 1997 are, by virtue of a connection with Hong Kong, British Dependent Territories Citizens (BDTCs) under the law in force in the United Kingdom will cease to be BDTCs with effect from 1 July 1997, but will be eligible to retain an appropriate status which, without conferring the right of abode in the United Kingdom, will entitle them to continue to use passports issued by the Government of the United Kingdom. This status will be acquired by such persons only if they hold or are included in such a British passport issued before 1 July 1997, except that eligible persons born on or after 1 January 1997 but before 1 July 1997 may obtain or be included in such a passport up to 31 December 1997.
b) No person will acquire BDTC status on or after 1 July 1997 by virtue of a connection with Hong Kong. No person born on or after 1 July 1997 will acquire the status referred to as being appropriate in sub-paragraph (a).”
The status referred to above was the BNO status – to which I will return shortly.
The Joint Declaration was registered at the United Nations on June 12, 1985, and Hong Kong was handed over to China on 1 July 1997. The last Governor Chris Patten said famously in his final speech before leaving the city with the Prince of Wales on the Royal Yacht Britannia: "Now, Hong Kong people are to run Hong Kong: that is the promise and that is the unshakable destiny".
But Britain also made it clear that it would monitor the situation closely to ensure that the promises made in the Joint Declaration were abided by. The prime minister at the time, John Major, said in a speech in Hong Kong in 1996 – a year before the handover – that “if there were any suggestion of a breach of the Joint Declaration, we would have a duty to pursue every legal and other avenue available to us.” He promised that: “Hong Kong will never have to walk alone.”
For the first ten or 15 years China by and large lived up to the promises of the Joint Declaration and “one country, two systems” flourished. I lived in Hong Kong for the first five years after the handover, beginning my first job as a journalist straight out of university, and during that time I can honestly say that Hong Kong’s freedoms were intact. Although I began to witness some examples of self-censorship in the media, by and large press freedom existed and the press was bold. Freedom of expression and freedom of protest were strong. And although Hong Kong was not – and never had been – a full democracy, there were democratic elections for the district councils and part of the Legislative Council. And when – in 2003, a year after I left – mass protests against the proposed Anti-Subversion Law took place, the government at the time backed down and withdrew the legislation.
But in 2014 something very fundamental changed in Hong Kong, which led to where we are today.
Hong Kong is governed by a Chief Executive – equivalent to a Mayor, or Governor. Hong Kong’s Basic Law – its mini constitution – provides in Article 45 for the possibility for that office to be elected by universal suffrage. The wording is vague, but it is there. It says:
"The Chief Executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People's Government.[1]"
"The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.[1]
Currently the Chief Executive is chosen by a 1,194-member Election Committee largely handpicked by Beijing. The Chinese government promised direct elections for Chief Executive in 2016 – but proposed to choose the candidates. As the father of Hong Kong’s democracy movement Martin Lee said: “What’s the difference between a rotten apple, a rotten orange and a rotten banana.”
In 2014 the largest protest movement in Hong Kong’s recent history (up to that point) began in opposition to Beijing’s proposal, demanding instead genuine universal suffrage. This began as the “Occupy Central with Love and Peace” movement initiated by University of Hong Kong law professor Benny Tai and others, and then evolved into what became known as the “Umbrella Movement” – a 79-day peaceful protest and occupation of Hong Kong’s streets.
That movement ultimately was unsuccessful, but it resulted in the growth of an ongoing movement for democracy and human rights in Hong Kong. However, an increasingly severe response from Beijing ensued.
Over the past six years we have seen a steady erosion of Hong Kong’s fundamental freedoms, the rule of law and autonomy. The abduction of booksellers who were publishing and selling books in Hong Kong critical of the Chinese Communist Party leaders; the disqualification of pro-democracy legislators and candidates; the arrests of peaceful protesters and the banning of foreign activists and journalists, of whom I was privileged to have been the first. In 2017 I was refused entry to Hong Kong on the orders of Beijing, and since then there have been others – including the Asia News Editor of the Financial Times and the Executive Director of Human Rights Watch.
We have seen increasing use of ‘lawfare’ against pro-democracy politicians.
We have seen the introduction of mainland Chinese law – the ‘colocation’ principle – at the high-speed rail terminus in Hong Kong, resulting for example in the shocking disappearance, detention and torture of a local Hong Kong employee of the British Consulate-General, Simon Cheng, last year.
We have seen threats to academic freedom and press freedom.
We have seen the advance of repressive legislation such as the national anthem law, which criminalises in vague terms any perceived ‘insult’ to the Chinese national anthem.
But it was the proposal to introduce an extradition law that set Hong Kong on the devastating path towards total takeover by the Chinese regime over the past 18 months. This bill, proposed by the Chief Executive Carrie Lam, would have allowed for the extradition to mainland China of people in Hong Kong wanted by the Chinese authorities: legislation which, had it passed, would have completely destroyed the ‘firewall’ established in the ‘one country, two systems’ principle designed to protect Hong Kong’s rule of law system from mainland China’s rule by law system. Until now Hong Kong has prided itself on the rule of law, independence of the judiciary, fair trial, concepts alien to the Chinese system which is based on arbitrary arrests and detention, disappearances, torture, politicised judgments and absolutely no judicial independence or due process.
The proposed law drew understandable outcry from across the Hong Kong and international community – from the legal sector, from chambers of commerce and businesses, and from world leaders and diplomats.
It also drew hundreds of thousands – two million at one point – of peaceful protesters onto the streets.
In response, the world was shocked by the widespread, indiscriminate, wholly disproportionate and absolutely horrific police brutality. It is true that later in the movement last year some protesters resorted to violence – something I have not and do not ever condone. But it is also important to try to understand how that happened. Protesters (a small minority of them) resorted to violence in response to police brutality against peaceful demonstrators, and out of deep frustration and desperation at a government that refused to listen to them. The extradition bill in the end was withdrawn, but far too late and not until after deep damage had been done. Even when Hong Kong people voted overwhelmingly for pro-democracy parties in the district council elections, the government refused to consider political reform. Over ten thousand protesters have been arrested, yet not a single police officer has been held to account for their brutality.
And then we come to the events of this year – the arrests of prominent mainstream moderate peaceful pro-democracy politicians such as Martin Lee, who is a senior barrister and founder of the Democratic Party of Hong Kong, another prominent barrister Margaret Ng and the entrepreneur Jimmy Lai, owner of the only mass circulation pro-democracy Chinese-language newspaper Apple Daily and others in April; the arrests just this past weekend of eight pro-democracy legislators and just today of an RTHK producer; and of course most devastating of all, the implementation of the new national security law and arrests under that draconian law since it was imposed.
The national security law – both in its content and in the speed and manner of its imposition on Hong Kong – and the arrests since its imposition(including another arrest of Jimmy Lai and a police raid on the Apple Daily newsroom) – marks the final death of the “one country, two systems” principle. What has happened is nothing short of an all-out assault on Hong Kong’s freedoms, autonomy, the rule of law and way of life by the Chinese Communist Party regime, a flagrant breach of an international treaty – the Sino-British Joint Declaration – and the transformation of one of Asia’s freest and most open cities into a place of fear and repression.
Why does this matter?
First, because Beijing has broken its promises, breached an international treaty and threatened the international rules-based order.
Second, because Hong Kong has been a major global financial centre, a vital regional hub for media and civil society, and a gateway to China and the region – and all this is now endangered.
Third and most importantly – because Hong Kong is the frontline in the fight for freedom against authoritarianism and if Hong Kong’s freedoms are lost, and the Chinese regime is allowed to get away with it, we can be sure they will not stop there. Taiwan is already in its sights – and beyond Taiwan, our own freedoms too.
Incidentally, it’s worth remembering that the national security law has an extraterritorial clause – meaning that anything said or done by anyone anywhere in the world that the CCP dislikes could be in breach of Hong Kong’s law. Theoretically, this webinar today could be a violation of the security law in Hong Kong. I am probably breaching Hong Kong’s security law every day, several times a day, by speaking about these issues from London.
So this is not simply a battle for the freedoms of the people of Hong Kong or the promises made to them, it is also a battle for freedom itself.
That is the context then for the specific topic of focus today: the question of citizenship. It was important to give you that context, as it hopefully explains why on 1 July, following the imposition of the national security law, the British Prime Minister and Foreign Secretary announced an unprecedently generous offer to up to 3 million Hong Kong BNO status holders: a “pathway to citizenship”.
As the Foreign Secretary Dominic Raab told Parliament on 1 July: “The United Kingdom will keep its word and live up to our responsibilities to the people of Hong Kong. We will proceed to honour our commitment to change the arrangements for those holding British national (overseas) status. We … have now developed proposals for a bespoke immigration route for BNOs and their dependents. We will grant BNOs five years’ limited leave to remain, with a right to work or study. After these five years, they will be able to apply for settled status, and after a further 12 months with settled status, they will be able to apply for citizenship. This is a special, bespoke set of arrangements developed for the unique circumstances we face and in the light of our historic commitment to the people of Hong Kong. All those with BNO status will be eligible, as will their family dependents who are usually resident in Hong Kong.”
To unpack that in a bit more detail:
· The scheme will be open to BNOs and their immediate family members, even if those immediate family members are not BNO status holders themselves. “Immediate family members” are defined as “spouse or partner and children aged under 18”.
· Applicants do not need to have a current BNO passport, but they must have registered for BNO status between 1987 and 1997 (registration for BNO status ended on 01.07.1997).
· In “compelling and compassionate circumstances”, the Home Office may consider those offsprings of BNO status holders who are over aged 18, observing that these offsprings may not have BNO status purely due to being “born after 1997 (so are not [BNO status holders]) and are over 18”. There will be a discretion to grant a visa to offsprings of BNO status holders who were born after 1997 and are now over 18, but who are still dependants of a BNO status holder parent. This discretion will ordinarily be limited to those born after 1997, still being dependants of a BNO status holder parent, and applying together as a family unit.
· Other cases of “high dependency” adult dependants of BNO status holders may also apply under a discretion, but this will be considered on a case-by-case basis. This would mean that the BNO status holders who are looking after elderly non-BNO status parents may be able to apply for their parents under a discretion under this scheme.
Further details were announced last month:
1. The Hong Kong BN(O) Visa will be open for applications from 31 January 2021.
2. BN(O)s will have the right to work in almost any role.
3. There will be no quota on numbers, and a clear pathway to citizenship.
4. A 5-year visa will cost £250 plus a £3120 health surcharge
This is a truly remarkable and unprecedented scheme, which is hugely welcome. It offers potentially up to 3 million Hong Kongers and their family members a place of safety and an opportunity to build a new life in a free society.
However, we must not think that because Britain has made this offer, the job is done. Some of the most vulnerable Hong Kongers in gravest danger are young activists born after 1997 who are not eligible for BNO status. There are also many born before 1997 but whose parents never registered themselves or their children for BNO status. Many of those who took part in last year’s protests are under 23, and potentially face arrest and long years in prison if they are not offered a way out. That’s why we in Hong Kong Watch have been advocating to other like-minded countries including the United States, Canada, Australia, New Zealand, European allies and others the need for a coordinated international ‘lifeboat’ scheme whereby such countries offer to take some of those non-BNOs – either through student visas and scholarships, a Young Talent scheme giving people the opportunity to work or, if necessary, expanding and strengthening options for asylum. An international contact group should be established among like-minded countries to coordinate efforts on this, and other policy responses to the crisis in Hong Kong.
Last week we saw the arrest of 19 year-old activist Tony Chung and two others as he prepared to seek asylum at the United States Consulate. This illustrates two points about Hong Kong today: the desperation on the part of young activists, and the draconian impact of the National Security Law.
To attempt to seek asylum in the US Consulate – without even an appointment – was an act almost as unwise as attempting to flee the city in a speedboat in the world’s most perilous waters, which 12 activists did in August. Anyone who knows the diplomatic missions in Hong Kong could tell you that even in the midst of a stand-off between the United States and China over human rights, security and trade, the tragic reality is that the US Consulate is not going to risk a dramatic escalation in tensions by sheltering a teenage pro-independence activist. Those who advised Mr Chung to attempt this path did him a grave disservice.
But the really striking point is this: the fact that he was prepared to attempt something so dramatic illustrates for the world how bad the situation in Hong Kong has become. Such an act of desperation should be a wake-up call to the free world that it is time to step up efforts to help Hong Kongers. This message is underlined by the fact that later that same day, four other activists attempted a bid for asylum at the consulate, and were similarly rejected.
These incidents came just two days after a global movement of solidarity with the 12 Hong Kongers in jail in Shenzhen. These 12 young people attempted to flee Hong Kong for Taiwan by speedboat, were arrested by Chinese police and are now in prison in China. They have been denied access to lawyers of their choice, medical care and family contact. Lawyers chosen by their families were last week ordered to drop the case. That brought home once again to us all what we of course have always known: in mainland China there’s no rule of law whatsoever – it’s rule by law, and the law can mean whatever the Chinese Communist Party regime wants it to mean.
Around the world thousands of people gathered to protest for their release ten days ago. In London, I spoke a rally at Tower Bridge attended by hundreds of demonstrators. Two days earlier, 63 British Members of Parliament sent a letter to the British Foreign Secretary Dominic Raab urging him to raise the case of the 12 with the Chinese authorities.
Throughout the previous week thousands of people around the world engaged in a social media campaign in support of the 12 – from the former leader of the British Conservative Party Iain Duncan Smith to the former US presidential candidate Senator Mitt Romney, from the climate change activist Greta Thurnberg to the former Miss World Canada Anastasia Lin, from politicians across parties and across nations from Europe to Australia, and from Joshua Wong to Grandma Wong. A truly inspiring mix of humanity speaking with one voice – and to be honest, if Grandma Wong is willing to speak out for the 12 after everything she has been through and the dangers she still faces, none of us have any excuse whatsoever for silence.
I have worked with people who helped North Korean refugees rush into foreign embassies to claim asylum. In my work on Burma I have tried to draw the world’s attention to scenes of Rohingyas on overcrowded boats trying to flee a genocide. I never imagined I would see Hong Kongers fleeing their city by boat or running into consulates in search of asylum. The National Security Law has not only killed what was left of Hong Kong’s freedoms, but is clearly being implemented in a way designed to create a chill factor for anyone else contemplating exercising their liberty.
That’s why an international lifeboat rescue programme is so urgently needed. Instead of activists risking their lives fleeing on speedboats or rushing into the consulates, let the free world open its doors in a clear, co-ordinated way.
What has been the response of the Chinese regime to all of this? Threats and intimidation.
China has told Britain to “immediately correct its mistakes”, it has threatened not to recognize BNO passports, and it has threatened to “retaliate”. The regime which said in recent years that the Sino-British Joint Declaration was “an historical document that no longer had any practical significance” now accuses Britain of breaching that same document – a treaty which China itself has breached so flagrantly.
Similarly, the Chinese ambassador to Canada said last month that if Canada “really cares about the good health and safety of those 300,000 Canadian passport holders in Hong Kong, and the large number of Canadian companies operating in Hong Kong,” it should not give asylum to Hong Kongers.
We cannot allow ourselves to be threatened and bullied in this way. We should ignore such threats, defend our values and do right by those in Hong Kong who need our help.
Hong Kong was the frontline for the free world. For now, that freedom has been lost. There are many responses which the international community could and should make to this, but at least one of them is to help those Hong Kongers who wish to or need to get out. Britain’s own offer is based on our specific historical and moral responsibilities to Hong Kong, but although the BNO offer is specific to Britain, I hope that the principle of it will be one which will inspire other countries to join the effort. Helping Hong Kongers leave Hong Kong should never be our first response or objective – our objective should be to keep Hong Kong free enough for people to feel they have a future there – but in recognition of the tragic reality that is before us, we should now be prepared to open up our doors and offer an opportunity to those Hong Kongers who wish to be citizens of the free world.