Mass arrests: the sinister aspect of democrats’ ‘35-plus’ primaries strategy for the Legco elections

The powers given to legislators under the Basic Law must be exercised in good faith. If the whole essence of their endeavours is to wreak havoc, and bring down the government, then they are using the Basic Law as a disguise for subversive activities

Henry Litton

Published: 11:30am, 26 Jan 2021

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The arrest of 53 people earlier this month in Hong Kong on suspicion of subversion has, once again, led to a frenzy of condemnation by Western leaders and the media. All those arrested have been released on police bail as investigations continue. These are likely to take some time.

Most of the 53 are “pro-democrats” who sought to take part in the September 2020 Legislative Council elections (since postponed); the rest are organisers of an event known as the “35-plus” primaries which took place on July 11-12.

The primaries were organised to find the candidates among the pro-democrats most likely to be elected into office, to prevent the votes for them being split in the various constituencies. The immediate aim was, with 35-plus opposition councillors in office in September, they would dominate the 70-seat legislature. Apparently, 610,000 registered voters took part in the primaries.

What is sinister about the whole scheme is that it was designed to implement a wider plot called “10 steps to real mutual destruction”, which was outlined by Benny Tai Yiu-ting in a Chinese-language Hong Kong newspaper article on April 28, 2020.

At the core of the 10 steps was that the legislators with control of Legco would not be there to discharge their constitutional functions in the best interests of the community. Quite the reverse. The aim was to use their powers as legislators to create chaos.

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The steps envisaged included exercising their powers under Article 73(2) of the Basic Law to refuse any allocation of funds to the government and vote down the annual budget, forcing the chief executive to dissolve Legco under Article 50 of the Basic Law.

New elections would then be called. The new Legco, with the plotters still in control, would once more veto the budget, compelling the chief executive to resign under Article 52(3) of the Basic Law.

This, according to the scheme, would inevitably lead to an acute crisis causing Beijing to intervene, in turn resulting in “strong” protests in the streets with bloody repression to follow. Western countries would then respond with political and economic sanctions on China.

This, in essence, was the shape of their “mutual destruction” or, as the mentality of the rioters in 2019 was known, “if we burn, you burn with us”. The same Chinese characters were used in both instances.

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To avoid this disastrous outcome, the government could yield to the plotters’ “five key demands”. These were in fact set up for the government to refuse, for they knew full well there was no way the government could accept them.

Among the demands was “double universal suffrage”, which required amendment of Annexes I and II of the Basic Law, which needed action by the National People’s Congress. This was not within the remit of the local government.

That, in essence, led to the arrests. Nothing happened, because the Legco elections were postponed.

No facts have been established but what is known seems to point to all the elements of a conspiracy to subvert state power, contrary to Article 22(2) and (3) of the national security law. This is a very serious crime requiring a high standard of proof.

In an interview on RTHK recently, the Democratic Party chairman justified their actions by saying: “The Basic Law basically says if you are a legislative councillor, you can vote down the budget.”

This was a disingenuous reference to Articles 50, 51, 52 and 73(2) of the Basic Law, treating them as playthings for lawyers, picking out the black letters for argument in court. Other spokespeople have made the same point.

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The Basic Law is not a black-letter contract entered into by parties with equal bargaining power, each seeking some advantage over the other from the text of the document they signed.

It is a living constitutional instrument and, under the common law, must be construed in a broad and liberal manner according to its true intent and spirit.

The preamble to the Basic Law states its purpose to be, among other things, to maintain “the prosperity and stability of Hong Kong”.

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Legco is one of the prime organs of government. The powers given to legislators under Articles 73(2), 50, 51 and 52(3) of the Basic Law are to be exercised in good faith, in the best interests of the community, maintaining prosperity and stability in the special administrative region.

A councillor may be muddle-headed, ignorant and unreasonable and still be carrying out his constitutional duty as a lawmaker. But when the whole essence of his endeavours is to wreak havoc and bring down the government, he is no longer performing constitutional duties under the Basic Law. He is using the Basic Law as a disguise for subversive activities.

It is wholly unnecessary to write into the Basic Law: “Every legislator must act in good faith” any more than it is necessary to prescribe: “A legislator must never take bribes”.

The police investigations are at an early stage. Much remains to be revealed. For instance, what, precisely, was put to the registered voters at the primaries to induce them to come out? What was said to them?

According to police, participants were paid substantial sums to take part. As a result, HK$1.6 million has been frozen. The significance of this will need to be explored.

The secretary for security has described the whole operation as “a vicious plot”. The degree of culpability of each participant may vary. But looking at the matter in the round, the secretary’s description may be no exaggeration.

Henry Litton is a retired Court of Final Appeal judge and author of “Is the Hong Kong Judiciary Sleepwalking to 2047?”