Formal court proceedings in the Hong Kong Primaries Election Case began on February 6, 2023, and the trial is expected to last for at least 90 days. Media in Hong Kong have reported this trial in the mainstream newspapers and are expected to further report the same. The case has attracted considerable international media attention too, and it was reported that many foreign consular officials attended. The case is being tried according to the National Security Law promulgated in July 2020. The judges must be from a designated list specifically appointed by the Chief Executive; there is no jury; release on bail before conviction is often not allowed; and the case could even be tried in Mainland China.
It was in November 2019, on the basis of a spectacular victory in the elections of the District Councils (community advisory bodies), that some activists of the pro-democracy movement led by Benny Tai attempted to organize candidates for the Legislative Council elections originally scheduled to take place in September 2020. The objective was to secure an absolute majority in the legislature so as to exert pressure on the Hong Kong Special Administrative Region (HKSAR) government to implement democratic reforms, including the direct election of the Chief Executive by universal suffrage.
Events of 2019
In the 2019 District Council elections, the pro-democracy camp secured 86 percent of the 452 elected seats with a 71.23 percent voter turnout rate. The normal turnout rate was about 40 percent or below. The results boosted the confidence of the pro-democracy movement.
The electoral system then as defined by the Basic Law was designed to limit the seats for the opposition in the Legislative Council. Only slightly more than half of the seats were returned by direct elections; thus with a 55-60 percent share of the direct votes in the past, the pro-democracy camp could only gain around a third of the total seats. The basic strategy of the movement was to mobilize voters to try to reach a voter turnout rate of around 80 percent against the usual 50 percent plus.
The campaign hoped that the precedent set by the 2019 District Council election victory and the grand objective of democratic reform would help to significantly raise voter turnout. The multi-member single-vote constituencies in the Legislative Council elections, however, required that the number of candidates in each geographical constituency be optimized so as to maximize the number of seats won. Hence, unofficial pre-election primaries to optimize the number of candidates were deemed necessary.
The Primaries Campaign
By early 2020, the radical and moderate wings of the pro-democracy movement were ready to cooperate. They witnessed the radicalism of the younger generation and the community’s support in the demonstrations as well as confrontations in the second half of 2019. Crowd fundraising was successful too. Voting took place on July 11 and 12, 2020 with 606,761 people taking part.
The primaries’ strategy was widely reported in the media, and the organization of the primaries and fundraising were open processes. The campaign organizers believed that if voters had voted for the candidates endorsed by the campaign, they would have supported the strategy. They wanted to secure a mandate and their plan would succeed only if the mandate was granted by an overwhelming majority of the electorate.
The primaries’ election strategy was soon rendered irrelevant by a series of events. The National Security Law was promulgated at the end of June 2020. On July 31, 2020, the HKSAR government announced the postponement of the September 2020 elections by one year using the COVID pandemic as the reason. Then the electoral system was drastically revised to bring in “patriots only” reforms in 2021. In January 2021, the national security department of the police force arrested 47 people who were the organizers and candidates in the primaries campaign.
They were prosecuted for violating the National Security Law and for subversion against the government for, if successful, they planned to use their majority in the legislature against the government. The tactics would include the rejection of government budgets and requests for appropriations and legislative proposals among others, so as to paralyze the administration.
Since the arrests in January 2021, most of the accused have now been detained for more than two years. It was realized that even if the accused can secure a not guilty verdict in this trial, the prosecution is expected to appeal. There were two or three foundations that had engaged in fundraising to pay for the legal expenditures of the accused in the pro-democracy movement, but they have all stopped functioning under pressure. For some of the accused, the legal costs could become a financial burden.
Only 16 out of 47 in the group decided to plead not guilty. The rest pleaded guilty. Many observers believed that they did so to secure a reduction of a third of the sentences according to the convention and get back their freedom as soon as possible after being detained for more than two years already. Four agreed to serve as witnesses for the prosecution, including the three principal co-organizers supporting Benny Tai. The decision to plead guilty by a majority of the accused is construed by many as a signal of the lack of confidence in the judicial system.
The candidates taking part in the unofficial primaries were at the forefront of the pro-democracy movement. Their prosecution means that they can no longer lead the movement in this difficult stage. In fact, some of them have indicated that they will no longer take part in politics and chose to leave their political parties. The Civic Party has recently announced its decision to disband.
No More Opposition
No pro-democracy parties took part in the Legislative Council elections when they were finally held in 2021, as they refused to accept the control of the pro-Beijing united front in the changed nomination process. Under the 2021 Hong Kong electoral reform, the nomination of an electoral candidate has to be endorsed by two members of the Election Committee in each of its five categories – the Election Committee comprises largely of pro-Beijing business and vested interests elected by “small circles”. Moreover, the 47 arrests might have produced a deterrence effect. As a result, there is no opposition in the Legislative Council today.
Even the mainstream media seldom report the deliberations of the Legislative Council as the general public finds them uninteresting. Outside the legislature, almost all the significant independent civic organizations have ceased to operate. So basically there are no more effective checks and balances in the territory now. It is not surprising that the voter turnout had been low and Hong Kong people voted with their feet. In the meantime, the John Lee administration has been emphasizing the need for good publicity for Hong Kong to attract investors and talent.
The trial has undoubtedly dampened political participation by the pro-democracy activists and might reflect in part the erosion of trust in the Hong Kong judicial system. Some of those on trial were nominated for the Nobel Peace Prize 2022 by a group of international academics, and again nominated by U.S. Congressional leaders in February 2023. This recognition outside Hong Kong may well demonstrate the only support for these activists, who can no longer function effectively in the territory today.