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Benny Tai – Testing the Bottom-Line of Academic Freedom and Freedom of Expression in Hong Kong

Benny Tai – À l’épreuve des limites de la liberté académique et de la liberté d'expression à Hong Kong
Patrick Kar-wai Poon

Résumés

Acteur majeur dans la conception de la campagne « Occupy Central », qui est ensuite devenue le « Mouvement des parapluies » et des campagnes de suivi sur les élections locales, le juriste Benny Tai Yiu-ting 戴耀廷, à la fois universitaire et citoyen, est un cas d’étude intéressant pour l'étude de l'espace de la liberté académique, de la liberté d'expression et de la liberté de réunion pacifique à Hong Kong. Ses actions montrent sa foi dans l’usage non-violent de la désobéissance civile pour obtenir des changements sociaux et politiques. Cependant, des lois draconiennes prétendant maintenir l'ordre public et la sécurité nationale ont fait de lui une victime, parmi d'autres, du contrôle social exercé par le régime de plus en plus autoritaire de Hong Kong, en raison de l'influence croissante du gouvernement de la Chine continentale, marquant ainsi le déclin brutal des libertés des universitaires activistes ou des universitaires qui s'engagent en commentant le sujet des droits de l'homme à Hong Kong. Cet article se concentre sur l'étude du double rôle de Benny Tai, universitaire et citoyen, qui a exercé ses droits à la liberté académique et à la liberté d'expression dans son activisme universitaire en transformant ses recherches et ses aspirations universitaires en activisme dans la vie réelle. Il examine également la conséquence tragique de son activisme universitaire dans le contexte de la diminution de l'espace accordé à la société civile à Hong Kong, suite à l'érosion de ses droits par le régime de la Chine continentale.

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Beginnings of “Occupy Central” Campaign – from Academic Research to Civil Disobedience

  • 1 Benny Tai Yiu-ting, “公民抗命的最大殺傷力武器 (Civil Disobedience is the Most Powerful Weapon)”, 16 January 201 (...)
  • 2 “Charter 08” was a manifesto drafted and first co-signed by over 300 Chinese public intellectuals a (...)

1Benny Tai Yiu-ting, a former associate professor of law at the University of Hong Kong, initiated his idea of an “Occupy Central” civil disobedience action in an article published in the Chinese newspaper Hong Kong Economic Journal 信報財經新聞on 16 January 2013, in an attempt to pressure the Chinese government into granting Hong Kong universal suffrage in the election of its Chief Executive.1 The article, which consisted of eight points of principle constituted a blueprint that Benny Tai believed would help Hong Kong achieve the aim of universal suffrage, shocked everyone in the city, including the pro-democracy activists who questioned how such an action could be carried out and garner enough support from the citizens. Benny Tai’s article is like a mini-version of “Charter 08”, which was drafted by late Nobel Peace Prize laureate and Chinese intellectual Liu Xiaobo 劉曉波 and other public intellectuals in China in 2008, but it was focused on the specific political situation in Hong Kong as Benny Tai obviously still believed that the Chinese government and the Hong Kong government would respect and comply with the “One Country, Two Systems” principle based on the Sino-British Joint Declaration and the Hong Kong Basic Law.2 It seems it was aimed to use his status as an academic to translate his academic research and aspirations into real-life activism as a citizen. He realized that he was testing the bottom-line of both Hong Kong and the mainland Chinese the regimes.

2In the article, Benny Tai argued that he was proposing the civil disobedience action as he believed that then Chief Executive Leung Chun-ying 梁振英 would not make any concrete promise in his annual policy address on implementing universal suffrage for the election of Hong Kong’s Chief Executive in 2017 and the election of the Legislative Council in 2020; the Hong Kong government and the Chinese government had already previously broken their promise of instituting Hong Kong universal suffrage in 2004 and 2008 as stated in the annexes of Hong Kong Basic Law. He also noted that there was a deep frustration among Hongkongers at being unable to achieve universal suffrage despite decades of effort, including protests, citizens-organized referenda and hunger strikes. Thus, the idea of the non-violent civil disobedience action was meant to be another form of civil participation in pressurizing the government to realize its empty promise of giving Hong Kong people universal suffrage. The points raised in his article became the major content of the “Manifesto” of the “Occupy Central” movement.3 Benny Tai’s article and the subsequent media interviews he gave to mainstream and online media in Hong Kong built the oppositional knowledge that “mediates the influence of support for democratization, external efficacy, and usage of online alternative media on protest participation and support for Occupy Central”.4

3In 2013, Benny Tai, Chan Kin-man 陳健民, an associate professor of the Department of Sociology of the Chinese University of Hong Kong, and Christian pastor and veteran pro-democracy activist Reverend Chu Yiu-ming 朱耀明 together elaborated and promoted the idea of launching the “Occupy Central” action. The author attended the meeting at a University of Hong Kong lecture theatre where Benny Tai and Chan Kin-man passionately explained their idea to the public. They believed civil disobedience action plan would be the appropriate means of pushing forward the stagnant pro-democracy movement for universal suffrage in Hong Kong.

  • 5 “Manifesto”, Occupy Central with Love and Peace”, 27 March 2013, https://oclphk.wordpress.com/2013/ (...)
  • 6 Wing-Sang Law, “The Spectrum of Frames and Disputes in the Umbrella Movement”, in Ching-Kwan Lee an (...)

4The presentation adopted a largely academic bent. Both Benny Tai and Chan Kin-man, who specialized in civil participation and social movements, used academic literature to support their arguments as to why civil disobedience action resembling the “Occupy” actions, such as “Occupy Wall Street”, employing road blockades of the key commercial district as the ultimate action, could help Hong Kong achieve universal suffrage. Explaining that the action would be a non-violent civil disobedience action, they told the public how they, as well as the Reverend Chu Yiu-ming who was veteran pro-democracy in the city, were prepared to go to goal as organizers of the action. They also explained the potential risk of arrest and imprisonment for potential participants of the action. For them, the action was also an exploration of how academics, as citizens, can get involved in civil action, rather than merely restricting themselves to publishing articles and books and teaching university students. Their academic interpretation was based on the concept of “civic participation” in politics. They cited various academic research data on the success and failure of non-violent civil disobedience in other countries as the basis of their advocacy. Their beliefs may have been based on the assumption that the Hong Kong government would follow the Hong Kong Basic Law in which article 137 states: “Educational institutions of all kinds may retain their autonomy and enjoy academic freedom.” In addition, article 34 stipulates that Hong Kong residents “shall have freedom to engage in academic research”. Thus, the initiators of the movement could legitimately believe what they were doing was merely exercising rights enshrined in the Hong Kong Basic Law, combining their roles both as academics and citizens. Chu Yiu-ming and Benny Tai, who is also a Christian, even presented the action with a religious gloss, giving the action the name “Occupy Central with Love and Peace” 讓愛與和平佔領中環, abbreviated as “OCLP”, during a press conference, which was held at a church, to announce the launch of the campaign.5 As noted by scholars researching political and social movements in Hong Kong, such as Wing-Sang Law, “OCLP took a cautious approach and tried to manage the occupation scene with strict discipline and order, to the point of even suggesting a ban on any unapproved loudspeaker. The purpose was to make sure that the whole action was strictly nonviolent; no unexpected event and no chaos would occur.”6 Such tactics actually prompted a lot of criticisms from the more radical advocates in the democracy movement.

5Benny Tai is a scholar of constitutional law. He cited various laws, including domestic and international ones, to explain why the action, despite being considered by others as violating the Public Order Ordinance in Hong Kong, was a legitimate action with reference to international law and the domestic laws which derive from the relevant international human rights law. Freedom of peaceful assembly is protected under Article 22 of Hong Kong Basic Law which reads: “Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and demonstration; and the right and freedom to form and join trade unions, and to strike.”7 Article 17 of Hong Kong Bill of Rights Ordinance also protects the right of peaceful assembly: “The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.”8 This provision is actually taken from article 21 of the International Covenant on Civil and Political Rights (ICCPR), which the UK extended to Hong Kong in 1976.9 The UN Human Rights Committee, which reviews the implementation of the International Covenant on Civil and Political Rights (ICCPR), of which Hong Kong is a state party, repeatedly raised concerns about the provisions in the Public Order Ordinance over “the application in practice of certain terms contained in the Public Order Ordinance, inter alia, “disorder in public places” or “unlawful assembly”, which may facilitate excessive restriction the Covenant rights”.10 Even in its previous comments in 1999 to the Hong Kong government’s first periodic report after the handover in 1997, the UN Human Rights Committee already made it very clear that it was “concerned that the Public Order Ordinance could be applied to restrict unduly enjoyment of the rights guaranteed in article 21 of the Covenant”.11 In a post published on his Facebook account on 22 June 2013, Benny Tai further elaborated on his position concerning the spirit of “Occupy Central” and its aim to put pressure on the government to apply the laws to “restrict power” 限權 and “achieve justice”達義, in which he wrote:

「佔中」精神是支持用商討的程序去讓每一個人都有機會表達自己的看法、用心聆聽別人的看法、促使持不同意見者可更明白其他人背後的信念、並盡力為共同的善去達成共識。

  • 12 Benny Tai Yiu-ting, “「佔中」精神” (“The Spirit of “Occupy Central” ), Facebook post, 22 June 2013, https (...)

The spirit of ‘Occupy Central’ is to support the procedure of discussion to allow everyone the chance to express their opinion, listen to others’ opinion, so as to help people holding different views better to understand one another’s underlying beliefs and to strive to achieve a consensus for the common good.12

6It is clear that what he was calling for people in Hong Kong to do was to engage in public consultations and try to achieve a common understanding on the strategies to improve the electoral system in Hong Kong and to achieve universal suffrage. The purpose was both academic and in favour of communal for social change.

  • 13 See Ng Ho-chuen’s detailed account of the “Umbrella Movement”, Diggit Magazine, 15 March 2017, http (...)

7After months of discussions and deliberations, including over 40 in-depth and strategic public consultations, and rehearsals of simulated “arrests” by the police, the “Occupy Central” action eventually occurred on 28 September 2014 after student activist Joshua Wong and others occupied the Hong Kong government headquarters (which was later branded by protesters as “Civic Square”, 人民廣場) following police firing tear gas at protesters. The action later snowballed to become the well-known 79-day “Umbrella Movement”.13

Academic Freedom and Freedom of Assembly

  • 14 The Public Order Ordinance was first enacted after the pro-Beijing riots in Hong Kong under the Bri (...)

8Benny Tai and Chan Kin-man’s action as academics raises the question about the extent of academic freedom, which in their case also related to the extent of freedom of expression and freedom of assembly for academics, that can be tolerated in Hong Kong. When they and Chu Yiu-ming initiated the idea of “Occupy Central”, the law they needed to take into account were the restrictions in the Public Order Ordinance.14 The law requires the organizers of a public assembly to obtain a “letter of no objection” from the Commissioner of Police before such an assembly. It gives so much power to the police that the Commissioner can decide to issue the “letter of no objection” or not based on merely his assertion of whether such a rally may cause interference to public order. In a 2012 media report, Benny already pointed out how he perceived the Public Order Ordinance having been tightened before Hong Kong’s handover from Britain to China due to the Chinese government’s concern about social order during the transition period. Therefore, even at the beginning of introducing his idea of the “Occupy Central” action, Benny Tai was fully aware of how the law would be used by the government to punish him, Chan Kin-man, Chu Yiu-ming and other participants in the action for holding an “illegal assembly”. And, to remind the participants of not to fall into the trap of being accused of assaulting police, Benny Tai, Chan Kin-man and Chu Yiu-ming, who were later dubbed as the “Occupy Central Trio” 佔中三子, organized an event simulating arrests and arranged for foreign veteran activists who were experts in civil disobedience to teach the participants how to relax their bodies if arrested by the police.

  • 15 Hong Kong was handed over from Britain to China on 1 July 1997, ending British colonial rule that d (...)
  • 16 Jeffie Lam and Joyce Ng, “Is this goodbye to Occupy Central? Co-founder Benny Tai admits, ‘We faile (...)

9As the campaign developed, the originally seemingly merely academic discussion became more politicized with other actions taken by other activists in society. Benny Tai’s intention was to turn the academic discussion into street actions, hoping that it could be an alternative way of civil action to supplement the usual forms of action in Hong Kong, namely the annual July 1 demonstration since 2003, debates in the Legislative Council, seminars in the community, and so on.15 However, it was obvious that the “Occupy Central Trio” underestimated the complexity of coordination of the civil society, which consisted of a wide spectrum of political demands among the stakeholders in Hong Kong. Even before the “Umbrella Movement” eventually took place in late September 2014, Benny Tai in fact admitted in early September the failure of the “Occupy Central” campaign due to initial lack of public support.16 His comments suggested that he was still considering his idea of “Occupy Central” a largely academic proposal and he could not yet see the determination of the public to engage in the campaign. That also prompted the Occupy Central movement’s secretariat to issue a statement to insist that they would continue to have 10,000 supporters to join the action on a yet undecided date. For him, and so for Chan Kin-man and Chu Yiu-ming, it was an exercise of the rights to academic freedom and freedom of expression to propose and discuss the then still unconfirmed date of civil disobedience action. As academics, both Benny Tai and Chan Kin-man may have thought that their academic research on constitutionalism, civil society and social movements authorized them to take action and encourage fellow citizens in Hong Kong to join the action. At that point, there was no factor that might trigger the wider public’s joining such an action and as mentioned above they were only thinking about 10,000 participants to block the roads in Central, Hong Kong’s commercial district, and were even considering how to minimize the economic costs that might cause.

  • 17 Occupy Central with Love and Peace, “Press Release: Nearly 800 thousand Hong Kong people voted agai (...)
  • 18 The Occupy Central with Love and Peace campaign website compiled the links to the 28 articles publi (...)
  • 19 Sonny Shiu-Hing Lo, Steven Chun-Fun Hung and Jeff Hai-Chi Loo, China’s New United Front Work in Hon (...)

10Most people only considered the “Occupy Central” movement a civil disobedience street action as attention fell on the sudden emergence of the 79-day “Umbrella Movement”, of which “Occupy Central” was part. But in fact, the “Occupy Central” movement was a series of public consultations. In June 2014, over 800,000 people took part in a citizens-led “referendum”, online and offline, to select a proposal to be submitted to the government for consideration.17 It was de facto a large and comprehensive public consultation after a series of public online and offline debates as well as Benny Tai’s and Chan Kin-man’s numerous articles – 20 of which written by Benny Tai and eight by Chan Kin-man – published in three local major Chinese newspapers Apple Daily 蘋果日報, Mingpao 明報 and Hong Kong Economic Journal in 2013.18 This actually provides clear evidence that the whole exercise of the “Occupy Central” movement was a lengthy public sounding of Hong Kong people’s opinions on universal suffrage and the demand for reform of the election system in Hong Kong, and not merely a street action. I would even argue that it was a manifestation of Benny Tai and Chan Kin-man’s beliefs in academic freedom – as academics themselves airing their views on politics through their articles and speeches, in the attempt to promote freedom of expression and freedom of peaceful assembly. In addition, by deliberately adding the notion “with love and peace” to the campaign’s title and their repeated reminder to the participants about the aim to hold a large and peaceful assembly, the “Occupy Central Trio” only promoted the freedom of peaceful assembly and did not instigate any violent actions. Their advocacy and action prompted various attacks by pro-Beijing politicians and media, such as Ta Kung Po 大公報 and Wen Wei Po 文匯報 as “Tai’s ideas are, to the PRC authorities and the pro-Beijing elites, politically ‘subversive’ because he is imbued with not only a very strong sense of Hong Kong identity but also a long-term vision of changing both the HKSAR and mainland China through the persistent democracy movement”.19

From “Occupy Central” to “Umbrella Movement

  • 20 Tania Branigan, The Guardian, “Hong Kong police use teargas and pepper spray to disperse protesters (...)
  • 21 South China Morning Post, “Occupy Central won’t start early, says Benny Tai, after student clashes (...)

11On 28 September 2014, after the police fired tear gas to disperse a crowd of about 30,000 people, who were shielding themselves with umbrellas from pepper spray which the Hong Kong police previously employed to disperse crowds in the Admiralty district of Hong Kong, close to the Hong Kong government headquarters, the public were shocked by the police’s sudden use of tear gas, instead of the usual use of pepper spray.20 As the angry crowds continued to gather outside the government headquarters and occupied several major roads, prominent student activist Joshua Wong and other young activists, who had been boycotting classes all week, climbed over the gate of the government headquarters and occupied the “Civic Square”, more people joined the rally. On that night, Benny Tai announced the launch of the “Occupy Central” action. The role of Benny Tai, Chan Kin-man and Chu Yiu-ming was diminishing in the action as it developed into the “Umbrella Movement” with no single group leading the assembly. Contrary to the plan of the “Occupy Central Trio” who only planned to hold the assembly overnight and expected that the police would remove each protester from the scene as previously envisaged, the voluntary action of the loosely connected citizens, many of whom first-time protesters, occupied the area for 79 days before the police clearance on 15 December 2014. In fact, on 26 September, two days before Benny Tai made the announcement that started the action, he had been repeatedly pressured by the student protesters to launch the action after several nights of clashes between the protesters and the police, leaving dozens injured, but he refused.. He and other founders of the “Occupy Central” campaign originally planned to launch the action on 1 October 2014, the national day holiday. Responding to media enquiries, he said at the protest scene that he would stay at the site until last moment, even if that meant that he would be arrested by the police, while insisting that the Occupy Central action would be launched as scheduled as it was a well-thought plan. He did not explain further but it was possible that the clashes between protesters and the police went against his and other founders’ plans to engage in a strictly peaceful assembly.21 The differences between the “Occupy Central Trio” and the protesters demonstrated the different strategies, with the “Occupy Central Trio” sticking to the no-clash and peaceful principle. Again, this is a manifestation of Benny Tai’s firm belief in exercising the right to freedom of expression and freedom of peaceful assembly as an academic. His insistence on following the well thought-out plan, despite being eventually affected and altered by the increasing clashes between the protesters and the police, reflected his self-consciousness as an academic, being inclined to put rationality and planning before public pressure. He was putting his academic research into social action, and thus translating his right to academic freedom to exercising his right to freedom of expression and freedom of assembly.

“Incitement”? Academic Freedom and Free Speech

  • 22 EJInsight, “Pro-Beijing rally calls for Benny Tai’s ouster from HKU”, 18 September 2017, https://ww (...)
  • 23 Jeffie Lam, South China Morning Post, “Hong Kong government ‘shocked’ by Occupy leader Benny Tai’s (...)
  • 24 The legislation of Article 23 of the Hong Kong Basic Law which requires Hong Kong to enact its own (...)

12After the “Umbrella Movement” ended in December 2014, despite the seeming fatigue of the pro-democracy movement due to the lack of any concrete impact on the Hong Kong government’s policies on elections, Benny Tai and Chan Kin-man continued to promote their ideas in other ways, demanding democratic elections in the city based on their academic arguments. They became targets of verbal attacks by pro-Beijing politicians and celebrities, and some called on the University of Hong Kong, Benny Tai’s employer, to dismiss him for his advocacy of the “Occupy Central” campaign.22 In addition, Benny Tai also tested the bottom-line of free speech as an academic in the city by commenting on independence as one of the options for Hong Kong one day when China became a democratic country. His comments at a seminar in Taiwan, organized by the Taiwan Youth Anti-Communist Corps, in March 2018, on the possibility of independence for Hong Kong, about which he also wrote in articles in local press in Hong Kong, attracted an immediate strong rebuke from the Hong Kong government and mainland Chinese officials, leading to more pro-government voices calling for his removal from his post at the University of Hong Kong.23 As Benny Tai defended himself: claiming he had already published such remarks in newspapers and there was nothing new about them. He also suspected the government of paving the way for Article 23 legislation of.24

  • 25 UN Human Rights Committee, “General Comments No. 34 on article 19 on Freedoms of Opinions and Expre (...)

13Benny Tai again apparently believed he was only exercising his right to academic freedom and freedom of expression when making comments based on his knowledge and academic research on constitutionalism and that he was only outlining the possibilities of a future scenario rather than supporting any political stance. But his controversial comments were exactly what the Hong Kong government, the central Chinese government and their supporters tried to discredit him with. No matter whether people, including government officials, agreed with his comments or not, he was only giving his own opinions, and thus exercising his right to academic freedom and freedom of expression, in non-violent ways. Thus, his comments could not come under the restrictions of article 19(b) of the International Covenant on Civil and Political Rights (ICCPR) and General Comments no. 34 on article 19 of ICCPR which allow certain necessary restrictions on speech related to national security and public security involving violence. Similarly, it is stated in the Johannesburg Principles on national security, freedom of expression and access to information that state restriction on speech could only be legitimate when it was related to promoting violence threatening genuine national security interests.25 In fact, he had written a series of articles between July and December 2017 in which the points he raised were those he outlined at the seminar in Taiwan. However, these did not attract much attention until he was invited to speak at the seminar.

  • 26 Karen Kong, “Human rights activist scholars and social change in Hong Kong: reflections on the Umbr (...)

14Academic freedom ought not only be about the freedom to publish academic publications and fulfil teaching and research duties in universities, it should also be about the protection of the freedom to be critical, including in the public sphere. Karen Kong pointed out how scholar-activists like Benny Tai and Chan Kin-man have changed academia’s perception and participation in political activism and the impact on students and civil society, even if they have paid the price for their activism.26

  • 27 Elson Tong, “Law professor Benny Tai outlines new tactical voting plan for 2019 District Council el (...)

15Despite the anticipated challenges, Benny Tai launched other campaigns “Operation ThunderGo” 雷動計劃 for the Legislative Council election in 2016 and “Project Storm” 風雲計劃)for the District Council election in 2019, based on his own observations and research.27 Throughout he only promoted his ideas and tried to persuade the pro-democracy politicians and potential candidates to accept his plans and to advocate his strategies through public platforms, mostly through his Facebook account and writing articles in local Chinese-language press, as well as organizing seminars and delivering public speeches. Again, he merely exercised his right to academic freedom and freedom of expression as a legal academic and an opinion leader on constitutionalism and public affairs. All his behaviour fell within the limits of an academic and citizen exercise their right to academic freedom and freedom of speech.

16However, all his campaigns, including “Occupy Central” (which in fact eventually became the “Umbrella Movement” in which he and the other two co-founders Chan Kin-man and Chu Yiu-ming arguably had little role), “Operation ThunderGo” and “Project Storm”, finally became the subjects of the criminal charges laid against him by the Hong Kong government.

  • 28 Holmes Chan, “Leading Hong Kong Umbrella Movement Activists found guilty of public nuisance”, Hong (...)
  • 29 Radio Television Hong Kong, “Benny Tai, eight others lose appeals over Occupy”, 30 April 2021, http (...)

17On 9 April 2019, Benny Tai, along with eight other pro-democracy politicians and activist (including Chan Kin-man and Chu Yiu-ming), was convicted of “conspiracy to commit public nuisance” and “incitement to commit public nuisance”, but was found not guilty of an even stranger and controversial charge of “incitement to incite public nuisance”, and on 24 April 2019 was sentenced to 16 months’ imprisonment.28 Benny Tai, who was released on bail awaiting appeal, and others later appealed against their convictions but eventually lost the appeal on 30 April 2021.29 Their arguments, through their lawyers, concentrated on the ambiguous definition of the charges as to what constitute “incitement”. Although they realized the fact that they would pay the price for organizing the civil disobedience action, the nature of the “incitement” charges laid against them only suggested crackdown on freedom of expression. I would argue that their arguments are valid. Criminal charges, such as “obstruction of public place”, “unauthorized assembly”, “illegal assembly” and “causing public nuisance” are available offences that could have been used against them, even if these charges were criticized by the UN Human Rights Committee as restricting freedom of assembly. The ambiguity and absurdity of the “incitement” charges raises the concern about initiating the idea of holding civil disobedience action and calling on people to take part in the action with their explicit consent; Benny Tai, Chan Kin-man and Chu Yiu-ming reminding the participants from the first day of their campaign of the need to demonstrate consent and providing each of them with “letter of consent”, could constitute the so-called “incitement”. As mentioned earlier, the role of the “Occupy Central Trio” was largely diminished even after Benny Tai announced the start of the action on 28 September 2014, and the outcome of the 79-day occupation far exceeded their original plan of a one-day occupation. While I am not arguing that they shirk their responsibility – and indeed they acknowledged from the very beginning that what they promoted was civil disobedience in the exercise of academic freedom, freedom of expression and freedom of peaceful assembly– the problem remains that the prosecution chose to bring the ambiguous “incitement” charges against them, which is similar to the charges laid against dissidents in mainland China to curb free speech; the most obvious example being the “speech crime” of “inciting subversion of state power” under article 105 of the Criminal Law of People’s Republic of China of which Liu Xiaobo 劉曉波 was convicted.

  • 30 BBC, “Benny Tai: Hong Kong university fires professor who led protests”, 28 July 2020, https://www. (...)

18As a result of his Benny Tai‘s conviction the University of Hong Kong decided to dismiss him for his role in the “Occupy Central” campaign, even though Tai was had been released on bail and awaiting the result of his appeal against the conviction. Benny Tai accused the university of bowing to pressure from the Chinese government and criticized the decision as “the end of academic freedom”.30

After the Imposition of “National Security Law” on Hong Kong in 2020

  • 31 BBC, “Hong Kong security law: China passes controversial legislation”, 30 June 2020, https://www.bb (...)

19Tai’s dismissal came less than a month after the controversial “National Security Law” was imposed on Hong Kong by the Standing Committee of the National People’s Congress in China. The announcement of the “National Security Law” created a very chilling effect in the city as a number of activists immediately announced they were quitting their organizations and some, including the popular young activist-led political group Demosistō, announced it was disbanded.31 From Benny Tai’s reaction to his dismissal, we can clearly see that he genuinely believed that in organizing the “Occupy Central” campaign and the follow-up campaigns on elections he was exercising his academic freedom and also his rights to freedom of expression and freedom of peaceful assembly.

  • 32 Kelly Ho, “Hong Kong democrats’ primary election begins amid controversy over polling stations and (...)
  • 33 Helen Davidson, “Hong Kong primaries: China declares pro-democracy poll ‘illegal’”, The Guardian, 1 (...)

20Just two weeks before his dismissal, Benny Tai together with former legislator Au Nok-hin 區諾軒, coordinated the two-day primaries for pro-democracy candidates running in the 2020 Legislation Council election which the Hong Kong government later delayed ostensibly because of the COVID-19 pandemic., Over 600,000 Hong Kong citizens cast their votes in the primaries, despite being menaced with the “National Security Law”.32 The central Chinese authorities then declared the primary elections “illegal” and the Hong Kong government announced an investigation, claiming that the candidates’ intention to vote against the government’s legislation on elections could break the national security law.33

  • 34 “53 Hong Kong democrats, activists arrested under security law over 2020 legislative primaries”, Ho (...)

21The campaign led to Tai’s arrest once more during a sweeping dawn raid on 53 prominent politicians and activists on 6 January 2021. On 28 February 2021, 47 of them, including Benny Tai, were charged with “conspiracy to commit subversion” for organizing the unofficial primary elections in July 2020, a charge, if convicted, carrying a maximum penalty of life imprisonment. After a four-day chaotic bail hearing, Benny Tai was among those requests for bail was rejected and he was remanded into custody.34

Conclusion

22From the beginning of his “Occupy Central” campaign to his conviction on “incitement” charges for his arguably very limited role in the “Umbrella Movement”, his dismissal from the university, to his second arrest facing a more serious criminal charge of “conspiracy to commit subversion”, Benny Tai used only his pento write the ideas and proposed actions based on his academic research and his political aspiration of reforming Hong Kong’s elections with the aim of achieving universal suffrage; enshrined as a promise in the Hong Kong Basic Law. For the actions, including the civil disobedience action which was originally planned as a one-day “Occupy Central” street action and eventually became the 79-day “Umbrella Movement” to his follow-up campaigns on local elections, he has consistently performed his role as academic exercising his academic freedom to write, and his role as a citizen to exercise his right to freedom of expression and freedom of peaceful assembly. By turning his political opinions and academic aspirations into real-life actions as a citizen, he exemplifies the role of scholar-activists in Hong Kong’s social movements. His arrests and detention, with the vaguely defined charges are incompatible with international norms as stipulated in the international covenants to which Hong Kong is a state party. Together with his dismissal by the university due to the exercise of his civil and political rights, his case exemplifies the dwindling space for academic freedom and freedom of expression for scholar-activists in Hong Kong.

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Notes

1 Benny Tai Yiu-ting, “公民抗命的最大殺傷力武器 (Civil Disobedience is the Most Powerful Weapon)”, 16 January 2013, Hong Kong Economic Journal, https://www1.hkej.com//dailynews/commentary/article/654855/%E5%85%AC%E6%B0%91%E6%8A%97%E5%91%BD%E7%9A%84%E6%9C%80%E5%A4%A7%E6%AE%BA%E5%82%B7%E5%8A%9B%E6%AD%A6%E5%99%A8; republished on Benny Tai’s Github: https://bennytai.github.io/HongKongReflections/%E6%80%9D%E8%80%83%E9%A6%99%E6%B8%AF6/1--%E5%85%AC%E6%B0%91%E6%8A%97%E5%91%BD%E7%9A%84%E6%9C%80%E5%A4%A7%E6%AE%BA%E5%82%B7%E5%8A%9B%E6%AD%A6%E5%99%A8.html, accessed 30 September 2021.

2 “Charter 08” was a manifesto drafted and first co-signed by over 300 Chinese public intellectuals as a blueprint of their aspiration about the democratic development in China. Among them, Liu Xiaobo was detained on 8 December 2008, two days before the manifesto was scheduled to be released. The charter was modelled on the “Charter 77” by more than 200 Czech and Slovak intellectuals in Czechoslovakia in 1977 calling for respect of human rights. The English version of “Charter 08” was translated by Perry Link and published in the New York Review of Books on 15 January 2009: http://www.2008xianzhang.info/english.htm, accessed 30 September 2021.

3 “Manifesto, Occupy Central with Love and Peace”, 27 March 2013, https://oclphk.wordpress.com/2013/03/27/english/, accessed 30 September 2021.

4 Francis L.F. Lee and Joseph M. Chan, Media and Protest Logics in the Digital Era: The Umbrella Movement in Hong Kong, Oxford, Oxford University Press, 2018.

5 “Manifesto”, Occupy Central with Love and Peace”, 27 March 2013, https://oclphk.wordpress.com/2013/03/27/english/, accessed 30 September 2021.

6 Wing-Sang Law, “The Spectrum of Frames and Disputes in the Umbrella Movement”, in Ching-Kwan Lee and Ming Sing (ed.), Take Back Our Future: An Eventful Sociology of the Hong Kong Umbrella Movement, Ithaca, Cornell University Press, 2019, p. 85.

7 Chapter III on “Fundamental Rights and Duties of the Residents”, Hong Kong Basic Law, https://www.basiclaw.gov.hk/en/basiclaw/chapter3.html, accessed 30 September 2021.

8 Hong Kong Bill of Rights, https://www.elegislation.gov.hk/hk/cap383, accessed 30 September 2021.

9 International Covenant on Civil and Political Rights, https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx

10 UN Human Rights Committee, “Concluding Observations on the third periodic report of Hong Kong, China, adopted by the Committee at its 107th session (11-28 March 2013)”, CCPR/C/CHN-HKG/CO/3, 29 April 2013, http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhsr2bAznTIrtkyo4FUNHETCQ0Y7P%2fow040gd8LZ9d1NQukCEhx4dNtgXsWJSk7fStTBMEzKOWsqHv9SlKqzjoKxAY0VEuYSz7bBCEBkn48xMZfM8%2brBXHTfUbyYz%2btx3U9w%3d%3d, para. 10, accessed 30 September 2021.

11 UN Human Rights Committee, “Concluding observations of Hong Kong Special Administrative Region’s fifth report on 1 and 2 November 1999”, 15 November 1999, http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhssZeM5yf4eKnxL2lLDRiS%2fRtwpV%2bP5LEcq2syxshYMqkBtzq3lhvLqXL0YRSqbiT9Q1MFypJGh0CgmYkDDYYUFxST7YjPPQO5cgv%2ffS3ticO, para. 19, accessed 30 September 2021.

12 Benny Tai Yiu-ting, “「佔中」精神” (“The Spirit of “Occupy Central” ), Facebook post, 22 June 2013, https://www.facebook.com/benny.tai.186/posts/10151423348300044, accessed 30 September 2021. Translation of the citation by the author of this article.

13 See Ng Ho-chuen’s detailed account of the “Umbrella Movement”, Diggit Magazine, 15 March 2017, https://www.diggitmagazine.com/papers/social-movements-digital-age, accessed 30 September 2021.

14 The Public Order Ordinance was first enacted after the pro-Beijing riots in Hong Kong under the British rule in 1967. It was amended in 1995, two years before Hong Kong’s handover to China, which defines the power of the Hong Kong police to control assemblies and demonstrations. https://www.elegislation.gov.hk/hk/cap245, accessed 30 September 2021.

15 Hong Kong was handed over from Britain to China on 1 July 1997, ending British colonial rule that dated back to the British occupation of Hong Kong Island in 1841 during the rule of the ManchuQing Dynasty. In 2003, the Hong Kong government attempted to pass the controversial national security legislation based on article 23 of the Hong Kong Basic Law, which largely restricted freedom of expression, freedom of association and freedom of assembly. Over half a million people took to the streets on 1 July 2003, which was supposed to celebrate the sixth anniversary of the city’s handover to China, to protest against the proposed legislation. The Hong Kong government eventually withdrew the proposed legislation. The then Secretary for Security Regina Ip Lau Suk-yee and the then Chief Executive Tung Chee-hwa subsequently resigned due to tremendous public pressure. Subsequently, the July 1 protest became a tradition and it was organized by the now-disbanded Civil Human Rights Front.

16 Jeffie Lam and Joyce Ng, “Is this goodbye to Occupy Central? Co-founder Benny Tai admits, ‘We failed’”, South China Morning Post, 2 September 2014, https://www.scmp.com/news/hong-kong/article/1583636/occupy-centrals-strategy-has-failed-and-support-waning-benny-tai, accessed 30 September 2021.

17 Occupy Central with Love and Peace, “Press Release: Nearly 800 thousand Hong Kong people voted against non-genuine universal suffrage”, 30 June 2014, https://oclphkenglish.wordpress.com/2014/06/30/press-release-nearly-800-thousand-hong-kong-people-voted-against-non-genuine-universal-suffrage/, accessed 30 September 2021.

18 The Occupy Central with Love and Peace campaign website compiled the links to the 28 articles published between 16 January 2013 and 10 September 2013, https://oclphk.wordpress.com/articles/, accessed 30 September 2021.

19 Sonny Shiu-Hing Lo, Steven Chun-Fun Hung and Jeff Hai-Chi Loo, China’s New United Front Work in Hong Kong: Penetrative Politics and Its Implications, Palgrave Macmillan, 2019.

20 Tania Branigan, The Guardian, “Hong Kong police use teargas and pepper spray to disperse protesters”, 28 September 2014, https://www.theguardian.com/world/2014/sep/28/kong-kong-police-teargas-pepper-spray-pro-democracy-protesters, accessed 30 September 2021.

21 South China Morning Post, “Occupy Central won’t start early, says Benny Tai, after student clashes with police leave dozens injured”, 26 September 2014, https://www.scmp.com/news/hong-kong/article/1601262/chaotic-scenes-students-break-civic-square-class-boycott-ends , accessed 30 September 2021.

22 EJInsight, “Pro-Beijing rally calls for Benny Tai’s ouster from HKU”, 18 September 2017, https://www.ejinsight.com/eji/article/id/1659330/20170918-pro-beijing-rally-calls-for-benny-tai-s-ouster-from-hku, accessed 30 September 2021.

23 Jeffie Lam, South China Morning Post, “Hong Kong government ‘shocked’ by Occupy leader Benny Tai’s independence comments at Taiwan seminar”, https://www.scmp.com/news/hong-kong/politics/article/2139698/hong-kong-government-shocked-occupy-leader-benny-tais, accessed 30 September 2021.; Danny Lee and Sum Lok-kei, South China Morning Post, “Independence comments from Hong Kong law academic Benny Tai earn sharp Beijing rebuke”, https://www.scmp.com/news/hong-kong/politics/article/2139779/independence-call-hong-kong-academic-benny-tai-earns-sharp, accessed 30 September 2021.

24 The legislation of Article 23 of the Hong Kong Basic Law which requires Hong Kong to enact its own law banning acts of treason, secession, sedition, or subversion against the central government, which was the controversial legislation proposed by the Hong Kong government that prompted over half a million people taking to the streets and that eventually shelved the proposal and led to the resignation of then Hong Kong Chief Executive Tung Chee-hwa and then Secretary for Security Regina Ip Lau Suk-yee. See: Fu Hualing, Carole J. Peterson and Simon Young, ed., National Security and Fundamental Freedoms: Hong Kong’s Article 23 under Scrutiny, 2005, Hong Kong University Press.

25 UN Human Rights Committee, “General Comments No. 34 on article 19 on Freedoms of Opinions and Expression”, 12 September 2011, CCPR/C/GC/34, https://digitallibrary.un.org/record/715606/files/CCPR_C_GC_34-EN.pdf (accessed 30 September 2021) UN Economic and Social Council, “Annex: Johannesburg Principles on national security, freedom of expression and access to information”, 22 March 1996, E/CN.4/1996/39, http://daccess-ods.un.org/access.nsf/Get?Open&DS=E/CN.4/1996/39&Lang=E, accessed 30 September 2021.

26 Karen Kong, “Human rights activist scholars and social change in Hong Kong: reflections on the Umbrella Movement and beyond”, International Journal of Human Rights, vol. 23, 2019, pp. 899-914.

27 Elson Tong, “Law professor Benny Tai outlines new tactical voting plan for 2019 District Council elections”, Hong Kong Free Press, 18 April 2017, https://hongkongfp.com/2017/04/18/benny-tai-outlines-new-tactical-voting-plan-2019-district-council-elections/, accessed 30 September 2021.

28 Holmes Chan, “Leading Hong Kong Umbrella Movement Activists found guilty of public nuisance”, Hong Kong Free Press, 9 April 2019, https://hongkongfp.com/2019/04/09/breaking-hong-kong-umbrella-movement-activists-handed-verdicts-public-nuisance-trial/ (accessed 30 September 2021); Holmes Chan, “Hong Kong’s leading Umbrella Movement activists handed jail sentences”, Hong Kong Free Press, 24 April 2019, https://hongkongfp.com/2019/04/24/breaking-hong-kongs-leading-umbrella-movement-activists-handed-jail-sentences/, accessed 30 September 2021.

29 Radio Television Hong Kong, “Benny Tai, eight others lose appeals over Occupy”, 30 April 2021, https://news.rthk.hk/rthk/en/component/k2/1588589-20210430.htm, accessed 30 September 2021.

30 BBC, “Benny Tai: Hong Kong university fires professor who led protests”, 28 July 2020, https://www.bbc.com/news/world-asia-china-53567333, accessed 30 September 2021.

31 BBC, “Hong Kong security law: China passes controversial legislation”, 30 June 2020, https://www.bbc.co.uk/news/world-asia-china-53230391 (accessed 30 September 2021.) BBC, “Hong Kong’s first trial under national security law starts without jury”, 23 June 2021, https://www.bbc.co.uk/news/world-asia-china-57576848 (accessed 30 September 2021).

Tong Ying-kit, a protester who was rode on a motorbike into several police officers while flying with a flag with the popular slogan “Liberate Hong Kong, Revolution of Our Times” 光復香港時代革命 during the “Anti-Extradition Bill” protests in 2019, became the first person arrested for violating the national security law on 1 July, the day after the law came into force and ton he 23rd anniversary of Hong Kong’s handover from British to Chinese rule

32 Kelly Ho, “Hong Kong democrats’ primary election begins amid controversy over polling stations and Covid-19 fears”, Hong Kong Free Press, 11 July 2020, https://hongkongfp.com/2020/07/11/hong-kong-democrats-primary-election-begins-amid-controversy-over-polling-stations-and-covid-19-fears/ (accessed 30 September 2021); Rachel Wong, “‘Hong Kong people made history again’: Over 600,000 vote in democrats’ primaries as co-organisers hail ‘miracle’ turnout”, Hong Kong Free Press, 12 July 2020, https://hongkongfp.com/2020/07/12/hong-kong-people-made-history-again-over-600000-vote-in-democrats-primaries-as-co-organiser-hails-miracle-turnout/ (accessed 30 September 2021); BBC, “Hong Kong: Opposition primaries draw thousands despite security law fears”, 12 July 2020, https://www.bbc.co.uk/news/world-asia-china-53382219, accessed 30 September 2021.

33 Helen Davidson, “Hong Kong primaries: China declares pro-democracy poll ‘illegal’”, The Guardian, 14 July 2021, https://www.theguardian.com/world/2020/jul/14/hong-kong-primaries-china-declares-pro-democracy-polls-illegal, accessed 30 September 2021.

34 “53 Hong Kong democrats, activists arrested under security law over 2020 legislative primaries”, Hong Kong Free Press, 6 January 2021, https://hongkongfp.com/2021/01/06/breaking-over-50-hong-kong-democrats-arrested-under-security-law-over-2020-legislative-primaries/ (accessed 30 September 2021); Candice Chau, “47 democrats charged with ‘conspiracy to commit subversion’ over legislative primaries”, Hong Kong Free Press, 28 February 2021, https://hongkongfp.com/2021/02/28/47-democrats-charged-with-conspiracy-to-commit-subversion-over-legislative-primaries/ (accessed 30 September 2021); Kelly Ho, “All 47 democrats facing security law charges remanded in custody after Dep’t of Justice appeals against bail application for 15”, Hong Kong Free Press, 4 March 2021, https://hongkongfp.com/2021/03/04/breaking-hong-kong-court-grants-bail-to-15-of-47-democrats-facing-security-law-charges/, accessed 30 September 2021.

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Référence électronique

Patrick Kar-wai Poon, « Benny Tai – Testing the Bottom-Line of Academic Freedom and Freedom of Expression in Hong Kong »Transtext(e)s Transcultures 跨文本跨文化 [En ligne], 16 | 2021, mis en ligne le 31 décembre 2021, consulté le 18 août 2022. URL : http://journals.openedition.org/transtexts/1558 ; DOI : https://doi.org/10.4000/transtexts.1558

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Auteur

Patrick Kar-wai Poon

Patrick Kar-wai Poon is currently a Visiting Researcher at Meiji University’s Institute of Comparative Law, formerly a Visiting Scholar at the School of Modern Languages of the University of St. Andrews (June-August 2021), and a PhD candidate at the Institute for Transtextual and Transcultural Studies at Jean Moulin University (Lyon 3). He has been working as a staff member and consultant for organizations, including Amnesty International, on human rights issues in Hong Kong and China since 2004. Before that, he was a journalist with the English-language media in Hong Kong and Asia, 2000-2004. Email: kar-wai.poon@univ-lyon3.fr.

Patrick Kar-wai Poon est actuellement chercheur invité à l’Institut de droit comparé de l’Université Meiji, anciennement chercheur invité à l'École de langues modernes de l’Université de St. Andrews (juin-août 2021), et doctorant au sein de l’Institut d’Études Transtextuelles et Transculturelles de l’Université Jean Moulin Lyon 3) Depuis 2004, il travaille en tant que consultant pour des organisations comme Amnesty International sur les questions de droits de l’homme à Hong Kong et en Chine. Avant cela, il a été journaliste pour des médias anglophones à Hong Kong et en Asie, de 2000 à 2004. Courriel : kar-wai.poon@univ-lyon3.fr.

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