This article was originally published by The Nation magazine and is republished here with permission. Read the full text of Wilfred Chan and JN Chien’s article here. Read our Chinese translation here.
After nearly four months of massive anti-government protests and an increasingly brutal police response, Hong Kong’s government has implemented a “nuclear option” that grants itself sweeping powers to quell dissent. Hong Kong Chief Executive Carrie Lam imposed an Emergency Regulations Ordinance (ERO) on the territory starting midnight Friday, October 4—a colonial-era law that hasn’t been used for nearly 50 years, preserved by China when it assumed sovereignty of the city in 1997. In her initial announcement earlier today, Lam claimed the ERO would be used only to ban wearing face masks in public. But the ERO is an autocrat’s dream: It empowers the city’s leader to “make any regulations whatsoever which he may consider desirable in the public interest.” This allows Beijing-backed leader Lam and her government to effectively suspend most Hongkongers’ civil rights; revoke the freedom of speech and press; arrest, detain, and deport citizens at will; enter and search premises without a warrant; and appropriate or seize property and assets.
The mask ban—which includes a ban on face paint—is itself already a significant setback for protesters who depend on anonymity for safety. Facial recognition is a real concern for protesters; any images that capture them in protests could make them liable to rioting charges, which carry a prison sentence of up to 10 years in Hong Kong. However, there are already signs that the government will seize on the ERO’s extensive powers to implement an even more extensive program of repression, starting with a citywide curfew. Looking to the ordinance’s deployment throughout Hong Kong’s history, these fears are not unfounded.
The Emergency Regulations Ordinance is an autocrat’s dream.
The ERO was first ratified in 1922, in the midst of the 30,000-person Seaman’s Union strike that paralyzed the city’s bustling port. After a month and a half, the colonial government introduced the draconian measures, choosing an iron fist over the bargaining table. Hongkongers responded to the ERO by staging a general strike, forcing the colonial government to accede to a significant pay raise for the striking laborers—but not without leaving authorities deeply rattled about their vulnerability to labor action. In 1967, when labor strikes grew into bloody, pro-Communist riots against the British colonial regime, authorities again used the ERO to violently crush the uprising. This time, the strikes ended in failure.
The appearance of the Emergency Regulations Ordinance at these critical junctures of Hong Kong’s history demonstrates the true character of the territory’s vaunted rule of law, the so-called “core value” that has made Hong Kong a conduit for so much Western and Chinese capital. There is the fact that the ERO almost certainly violates Hong Kong’s Bill of Rights; the question is whether that even matters. (As of October 4, Hong Kong’s High Court has denied an activist’s request for an interim injunction against the mask ban.) After all, as argued by protester Brian Leung—now in exile after leading a desperate, unauthorized charge into the city’s Legislative Council in July—the “rule of law” is nothing more than a colonial myth: Hong Kong’s legislation has been authored by and for the governing elite, not the people. That both China and Lam repeatedly invoke the concept in justifying increased police repression reveals that Hong Kong’s rule of law has only ever meant legalistic authoritarianism.
This realization also makes clear the continuity between the British colonial regime and the Chinese authoritarian state. Far from dismantling the tools of colonial control, Beijing has merely recycled them to guard the capitalistic interests of its own political elite. In 1997, Hong Kong’s erstwhile colonial governor was replaced by a chief executive, appointed in private by a closed-door circle composed largely of Beijing-friendly plutocrats. The Legislative Council, created near the end of British rule, is half-“elected” by business interests, ensuring the body remains effectively a rubber stamp for the establishment. (This structure is also what enables Hong Kong’s oligopoly of mega-developers to buy deeply subsidized land from the officials that they help select and drive up the prices for everyone else—one reason Hong Kong continues to be one of the least affordable cities on earth.)
For years, Hongkongers have stood up against this rigged system to demand genuine universal suffrage. But as the protests grow larger, the rule-by-law regime resorts to its powerful insurance policy: the police. Instead of addressing protesters’ grievances or attempting to remedy the underlying social, economic, or political issues, the government sends in the police to crush dissent. After all, it was a massive police clearance, not a political solution, that ended the 79-day Umbrella Movement in 2014. In Hong Kong, as elsewhere, the primary function of policing is to protect the political and economic power of elites. Recently, the MTR Corporation—the city’s semi-private rail operator and one of Hong Kong’s biggest landlords—has begun cooperating with police to shut off protesters’ escape routes and even detain protesters within stations. At other times, the link between the police and the propertied classes has been made cruelly explicit: A recent viral video captured riot police mocking a protester as having “no social standing” for living in public housing. Unsurprisingly, the face-mask ban does not apply to police; when the Hong Kong secretary for security was asked whether it would, he said, “When police officers execute their duties … we have ways to identify them.” It’s unclear what those would be—Hong Kong police stopped wearing their warrant cards during summer protests, making it impossible for protesters to identify or file complaints against individual officers.
Far from dismantling the tools of colonial control, Beijing has merely recycled them to guard the capitalistic interests of its own political elite.
That is why this year’s protests have gone beyond calling for democracy and are targeting the police themselves. Since July, protesters have demanded an independent inquiry into police brutality, and for police to drop their characterization of the protests as “riots.” Earlier this week, after police shot a teenager in the lung, protesters added a new demand: the disbanding of the police force altogether. Without a doubt, this is their most radical demand so far—one that would break open Hong Kong’s interlocking systems of oppression and exploitation. As Lam has retreated from view, the police have been revealed as the linchpin that holds together Hong Kong’s illegitimate authoritarian governance. The chief executive admitted as much when she told a group of businesspeople last month, “Apart from the 30,000 men and women in the force, we have nothing. Really. We have nothing. I have nothing.”
This confirms the centrality of police to Hong Kong’s governance—and their primary responsibility all along: to protect the powerful during the city’s transition from British colonialism to China’s equally exploitative state capitalism. It also demonstrates the emptiness of Hong Kong’s “rule of law” as a recycled mechanism of colonial control (and should at long last consign colonial nostalgia to the dustbin of history). Protesters may now be entering a fight more difficult and dangerous than anything Hongkongers have faced before. But what is most certain is that with Hong Kong’s authoritarian foundations so nakedly exposed, it is no longer an option to return to the status quo.