Generation 40s – 四十世代

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Hong Kong should waive the debt of disqualified lawmakers, following Australia’s example

CommentInsight & Opinion
Grenville Cross says the practice in Australia of not pursuing the debt of ejected parliamentarians – provided they have discharged their duties ‘in good faith’ – offers Hong Kong a way forward

Although the president of Hong Kong’s legislature, Andrew Leung Kwan-yuen, says the Legislative Council Commission acted on legal advice in seeking the full repayment of salaries and allowances from four disqualified lawmakers, the advice has been queried in some quarters.

The fact remains that the disqualification of Nathan Law Kwun-chung, Leung Kwok-hung, Lau Siu-lai and Edward Yiu Chung-yim meant that their original election was void. As such, they were disentitled to the sums paid, and the commission is within its rights in seeking their return, however imprudent that course may be.

But this is not its only course.

In October, several lawmakers in Australia, including the deputy prime minister Barnaby Joyce, also lost their seats. The Australian High Court decided they were ineligible because they were dual nationals, which is constitutionally prohibited. As the ejected lawmakers had already taken part in parliamentary proceedings for over a year, the repayment of salaries and entitlements would, if enforced, be a significant burden for them.

A similar situation also arose in April, when the High Court – for constitutional reasons unrelated to citizenship – found that Senator Bob Day had not been validly elected in 2016. Although the question of repayment arose, the responsible minister, Scott Ryan, said it would be unfair of the government to pursue the debt, given that Day had discharged his senatorial duties “in good faith”.

In Australia, the convention is to waive such debt. Ousted parliamentarians are given two options: pay up or apply for a waiver from the government. Provided there is no evidence of bad faith, the application of a waiver will normally be granted.

In Hong Kong, the four lawmakers seemingly acted in good faith in the Legislative Council after they were sworn in. Although they took their oaths in an irregular fashion, with two being required to retake them, they were all nonetheless ultimately seated. By contrast, the extreme antics of two other lawmakers, Sixtus Baggio Leung Chung-hang and Yau Wai-ching, at their oath-taking resulted in them being excluded altogether.

The four seated legislators would have assumed that they had been accepted as Legco members.

In these circumstances, the Australian approach provides valuable guidance for the Legco commission, which should now reconsider its demands in light of it. This, after all, was not a case in which someone tricked their way into Legco, as happened in 1985, when Tai Chin-wah, having falsely represented himself to be a solicitor, was elected to the chamber. He was unmasked six years later.

There can be no possible objection to the commission enforcing repayment of the debts owed by Sixtus Baggio Leung and Yau, whose abusive conduct violated basic norms. Their four colleagues, however, were not in that category, as the Legco president himself accepted. Ejection from Legco is itself a severe sanction, and basic fairness requires the waiver of the debts.

If, however, this does not happen, it is fanciful for people to suggest that Legco proceedings in which the four participated should be retroactively undone. Even if feasible, this would produce chaos.

In 1907, the Australian High Court resolved this very issue when it ruled that votes on legislation remain valid, even if a parliamentarian is subsequently deemed to have been invalidly elected, and this remains good law. As the judgment put it, “the proceedings of the Senate as a House of Parliament are not invalidated by the presence of a senator without title”.

Grenville Cross SC is a criminal justice analyst


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Hong Kong’s young democracy campaigners risk losing sight of the real changes needed in society

Anson Au says democracy is just another form of government, far from perfect and equally prone to ideological excess. Instead of chasing universal suffrage, Hong Kong needs to negotiate the best way forward to create a better society

The past couple of weeks have seen a resurgence in the push for democracy among youth in Hong Kong. Zealous cries for a new order have filled the air once more, in the wake of the anniversary on September 28 of Occupy Central, which ignited massive dissent among thousands of youth bound to the vision of democracy.

And just two weeks ago, former governor Chris Patten concluded his four-day visit by rallying Hongkongers to the pursuit of democracy and urging Beijing to consent.

Joined by a host of global media outlets, these sentiments betray a belief in the inherent good of ­democracy – but overlook the purpose of governance itself.

We must stay grounded. ­Democracy, as with all forms of governance, is but a means to an end – which is the establishment of a good society. My research explores what constitutes a good society and what can destroy it, and it shows that the answers don’t lie in any one form of governance.

We must separate ideology from practicality in the context of governance for a good society. As history tells us, it’s when we fail to do so that a society moves to atrocious ­extremes.

First, democracy is not without its dark side. Whereas popular belief holds that it’s inherently good, political research uncovers the ­uncomfortable truth that this isn’t the case. Democracy is not built upon the premise of bringing about “the most good for the majority”. Rather, it’s structured upon “the most good decided by the majority”.

Both modern history and the ­recent past have witnessed atrocities willed into being by the majority of a given society. Minorities in a populace often belong to economically impoverished and politically marginalised categories. As such, they possess significantly less ability to resist convenient and swift suppression by a hostile, intolerant majority. In Yugoslavia, they were the Bosnian Muslims and Croats, popularly hated minorities unable to resist violence by Serb militants.

In the days leading up to the establishment of Nazi Germany, they were the already stigmatised Jews, homosexuals, elderly and disabled – powerless to resist oppression, arrest and cleansing by a regime that channelled, rather than moderated, ideological hatred among the majority.

In Rwanda, they were the Tutsi and moderate Hutu leaders, defenceless against the anti-Tutsi radicalism washing over the Hutu state. The result was the infamous Rwandan genocide, whose ghosts still haunt the nation and human rights committees the world over. When organised by the majority alone, the state becomes a voice for the majority alone – rather than moderate hateful sentiments harboured by the majority, it channels them.

Strongman ­tyrants can ascend to power in democracies by capitalising on ideological fervour and insecurities among the majority. We need not look very far into history: the broad, recent rise of the far right across Europe and America prove the contemporary relevance of this admonition.

Both Geert Wilders in the Netherlands and Marine Le Pen in France championed, to great success, Islamophobia and the rejection of refugees in appealing to lower- and middle-class xenophobia. They were only narrowly beaten by more moderate candidates.

In the UK, Brexit attracted popular support, despite the economic disasters that pundits confirmed it would bring. On the ill-informed, misleading platform that Britain could accrue more capital outside the European Union, Brexit succeeded in convincing a majority more invested in nationalism than practicality. And most recently, Donald Trump rose to the White House by targeting immigrants and trumpeting the purge of big money from governance. Manipulated for their insecurities with employment, a majority rallied behind his claims, despite his very apparent financial conflicts of interest.

Second, Hong Kong is seeing divisions between the young and old. Young adults have lashed out against older citizens for retreating from the push for democracy, ­accusing them of political apathy, or worse, treason against Hong Kong society. But difference should beget discussion, not exclusion.

The legacy of Occupy Central has been … distorted into ideological fervour among youth

Incendiary reactions to difference show how the legacy of Occupy Central has been an improved consciousness of democracy, but distorted into ideological fervour among youth not unlike that of the Red Guard and other cross-national cases in world history. The convergences evoke historical memories of very real dangers.

In China, the Red Guards turned over their families, peers, teachers and schools to state punishment. In Cambodia, French-trained cadres led by Pol Pot swept the country with party purges and fratricides for a modernised, agrarian society.

Both cases show what happens when a country’s young ideologues rally behind a mode of governance for its own sake. Families are divided; the younger and older generations are split; unrest and violence ensue. Institutions embodying tradition are destroyed, and evidence-based assessments of what’s good for society are abandoned. Uprooting a plant always pulls up with it soil, grass, and living creatures. What does a heavy-handed democratic revolution threaten to uproot – policies, relations, institutions – along with the existing mode of governance? What will fill the gaping hole left in the earth afterwards? Who will benefit?

What does a heavy-handed democratic revolution threaten to uproot along with the existing mode of governance?

Third, stop focusing on democracy. Democracy, as with any governance, is only a means to an end. Thinking otherwise gives rise to ideological sentiments with disastrous consequences, as historical precedents have shown.

Furthermore, it distracts us from discussing the changes, the actual fruits of governance, that we want to see. Affordable housing; more ­resources for health services; a better old-age living allowance.

The calls for universal suffrage fail to address how any such issues or policies would be improved.

Real, positive change can only happen in Hong Kong by negotiating at the table, not by overturning it and attempting to build a new one; by engaging with actual policies and relations, instead of an abstract “fight”; by discussing the real, concrete needs of Hong Kong citizens, more than ideals written by a few on paper. We must forego visions of governance motivated by ideology to see the ends, rather than the means, in order to build a better society and prevent disaster.

I do not blame ethnic majorities for extreme crises. Ethnic majorities do not create extreme crises, but they can empower the ones who do: ranging from the endorsement of right-wing fascism to platforms that literally fracture nations.

Democracy claims to benefit all of society, but so does virtually every other mode of governance – what matters is how it is brought to effect.

A system lives for the people – not the other way around. We must refocus on the practical consequences of governance itself.

As Nelson Mandela – at a widely televised New York town hall in 1990 with American news anchor Ted Koppel – said in response to a question about the type of economy he envisioned for South Africa: “We are not concerned with models. We are not concerned with labels. We are practical men and women whose solutions are dictated by the actual conditions existing in our country. It does not matter whether the cat is black or white – so long as it can catch mice.”

Anson Au is a visiting researcher in the Department of Sociology at the Hong Kong Baptist University and a research officer at the LSE Health and Social Care and Department of Social Policy (joint) at the London School of Economics and Political Science.

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Hong Kong government needs to get tough with rogue pro-Beijing lawmakers and activists, too

CommentInsight & Opinion
Albert Cheng says Carrie Lam and her ministers have come down hard on the democrats and independence advocates, so they should not tolerate threats such as Junius Ho’s ‘kill without mercy’

The Leung Chun-ying era has ended, and Zhang Xiaoming, director of the central government’s liaison office, is to be transferred back to Beijing to take up a more significant role, as director of the State Council’s Hong Kong and Macau Affairs Office. However, the leaving of two leaders known for their hardline views has not brought peace to Hong Kong; the political turmoil continues.

The latest drama involved pro-Beijing lawmaker Junius Ho Kwan-yiu. Backed by the liaison office and rural leader Tsang Shu-wo, Ho launched an online petition and organised a rally to pressure the University of Hong Kong to sack Benny Tai Yiu-ting, its associate professor of law and co-organiser of the Occupy Central protests.

At the rally at Tamar Park last Sunday, which police said was attended by some 2,000 people at its peak (organisers claimed 4,000 turned up), Ho and Tsang led a Cultural Revolution-style public denunciation of Tai and the pro-independence camp. Tsang told the crowd that pro-independence activists should be “killed”, and Ho responded by leading a chant of “no mercy”.

Their actions have angered many people, but Ho has refused to apologise, arguing that the word the participants used at the rally was not “kill” but in fact “halt” (the two words are homonyms).

Twenty-two pan-democratic lawmakers have jointly released a statement condemning Ho’s speech, saying it advocated violence and breaking the law. They said Ho’s action went beyond freedom of speech, and have pledged to pursue the matter at Legislative Council meetings.

Indeed, with his threat to “kill without mercy”, Ho may have committed a criminal offence under the Public Order Ordinance. Yuen Long district councillor Tsang Shu-wo, too, should fully understand that verbal threats can be easily put into action.

Hongkongers should exercise their civil rights to file complaints with the Law Society and Legco. Pro-independence activists who are concerned for their safety may also consider reporting the case to the police. Ho, a solicitor, may also have violated his professional code of conduct. The Law Society should look into this.

In response to media inquiries, Secretary for Justice Rimsky Yuen Kwok-keung said he would not comment on individual incidents, but pointed out that whether certain conduct or comments constituted a criminal offence would depend on the overall context.

Not long ago, Yuen successfully appealed against the non-custodial sentences of three young activists – Joshua Wong Chi-fung, Alex Chow Yong-kang and Nathan Law Kwun-chung – convicted for their involvement in the storming of government headquarters in 2014. Yuen had sought a heavier sentence on the grounds that the word “retake” in their rallying cry to “retake Civic Square” indicated the use of violence. Yet, now, Yuen is apparently fine with people openly using the word “kill” at a public rally. This smacks of double standards.

Hours after she was elected in March, Chief Executive Carrie Lam Cheng Yuet-ngor promised to mend the severe divisions in society. So far, she has failed to make good on those promises.

Meanwhile, her secretary for justice has been making use of the common law not to defend justice and uphold the rule of law, but to oppress pro-democracy lawmakers and young student activists who aspire to make a difference.

Soon, Lam will no longer be able to blame our problems on her predecessor. She condemned as “extremely callous” and “cold-blooded” a taunt aimed at education undersecretary Christine Choi Yuk-lin on the loss of her son. Yet, Lam has only made some general comments, without naming Junius Ho. Rogue elements from the pro-government camp are ganging up, believing they hold all the trump cards as the government backs them. If Lam fails to address and fix the problem in a proper manner, her governance is doomed to be for naught.

Albert Cheng King-hon is a political commentator.

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Does respect for China’s national anthem have to be mandated by law in Hong Kong?

CommentInsight & Opinion
Cliff Buddle says criminalising derogatory treatment of the national anthem, while intended to protect it, would nevertheless curb freedom of expression. Worse, the proposal comes at a sensitive time in Beijing-Hong Kong relations

When the Sex Pistols released their punk version of Britain’s national anthem in 1977, the country’s establishment reacted with horror and outrage.

The BBC banned the song from the airwaves, some stores refused to sell the single, and the band came under fire from the media and the public. There were even scuffles and arrests during a provocative publicity stunt when the song was played on a boat on the River Thames.

Forty years on, the punk anthem might strike a chord with Hong Kong’s disaffected youth, with its uncompromising anti-establishment message and refrain of “no future for you … no future for me”.

But any attempt to subject China’s national anthem, March of the Volunteers, to similar treatment could, in future, land those responsible in jail. A law on China’s national anthem was passed by China’s top legislature on Friday. It is a national law, which means it does not automatically apply to Hong Kong. But the intention is to bring it into force in the city by following procedures set out in Hong Kong’s de facto constitution, the Basic Law.

Zhang Haiyang, deputy head of the NPC law committee, said the legislation is necessary to foster socialist core values and to promote the patriotism-centred spirit of the nation.

The law bans malicious altering of the lyrics in a derogatory manner in public.

Latter-day Sex Pistols beware!

It also limits the occasions when the national anthem may be played. Using it in advertisements, as background music in public places, or at funerals, is not allowed. The law requires everyone to respect the national anthem. When it is played, those present are to stand in a respectful manner. A breach of the law can result in 15 days police detention. Violations can also be dealt with under other laws.

National anthems, as a reflection of a country’s identity, history and culture, are entitled to respect. It is not surprising this one is being applied to Hong Kong given that, as part of China, it is the city’s national anthem, too.

However, a law which makes disrespecting the national anthem a crime will curb free expression. Concerns have already been expressed about the impact it will have. And it comes at a time of heightened sensitivity about moves by Beijing to use the law to further its objectives in Hong Kong.

The city’s leader ,Carrie Lam Cheng Yuet-ngor, has said the law will be applied through local legislation. That is necessary, because some parts of it simply will not work under the city’s separate legal system. There is no detention without trial in Hong Kong. The draft law’s requirements for the media to promote the national anthem and for it to be included in school music curriculums would appear to conflict with provisions of the Basic Law protecting press freedom and preserving the city’s autonomy over education.

It is very important that the law is clear and precise so that everyone understands what constitutes an offence. If it is too broad, the courts are likely to view it as an unlawful restriction on the freedom of expression and strike it out.

Pro-establishment lawmakers have suggested that booing the national anthem at a football match will breach the law. Whether or not that is the case will need to be made clear.

Hong Kong fans started booing the national anthem at football matches in 2014, following the Occupy pro-democracy protests that year. It is difficult to see how a law against this would be enforced. What are the police to do? Arrest the crowd at Mong Kok Stadium? Do we really want to impose criminal sanctions on young people holding up a sign saying “boo” when the national anthem is played? What if someone fails to stand up or forgets the words? Is that also a matter for the police?

Whatever form the law passed by the Legislative Council takes, it is likely to be breached. This will mean another controversial court case in which the constitutionality of the law is tested. That is what happened in 1999 after a national law criminalising desecration of China’s flag was applied to Hong Kong. The Court of Final Appeal upheld the flag law, which carries a maximum sentence of three years’ imprisonment. But its judgment was criticised because the majority of the judges relied on the vague legal concept “ordre public”, which was seen as a weak basis for justifying a restriction on human rights.

The March of the Volunteers has a colourful history. Written in the 1930s, it became a rallying cry for the people of China during the war with Japan. It was later adopted as the national anthem of the People’s Republic of China, although the lyrics were at one point changed to incorporate references to Mao Zedong. The original words were restored in 1982.

Student protesters sang the anthem in Tiananmen Square in 1989 before the crackdown.

Laws protecting national anthems exist elsewhere in the world and are occasionally a source of controversy. India’s Supreme Court ruled last year [9] that people should stand up in respect for the country’s national anthem when it is played in cinemas and there have been cases of people being arrested for failing to do so.

In Japan, teachers have been disciplined for refusing to stand during the playing of the national anthem at schools, because they associated the song with country’s military past.

In the US, the law encourages people to respect the national anthem but there are no criminal penalties for failing to do so.

Times have changed in Britain in the 40 years since the release of the Sex Pistols single. A Conservative Member of Parliament recently called for the national anthem to be played by the BBC at the end of its day’s television programming, as happened until 1997. BBC’s Newsnight programme responded by saying it was happy to oblige – it played the Sex Pistols version.

It is natural for governments to expect their country’s national anthem to be respected. But the addition of another law which criminalises a form of expression is not what Hong Kong needs at this politically sensitive time. To borrow from the Sex Pistols song, it’s a “potential H-bomb”.

Cliff Buddle is the Post’s editor of special projects

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With Hong Kong’s young faces of democracy in jail, is civil society being put in chains?

CommentInsight & Opinion
Michael Davis says the political symbolism of locking up young activists over excessive zeal is telling, and the lack of prosecutorial restraint may put at risk the reputation of Hong Kong’s independent judiciary

Last Thursday may qualify as one of the darkest days in Hong Kong’s history. The tragedy of young civic activists being dragged off to jail is bad enough. The political symbolism of Hong Kong’s three “faces of democracy,” being thrown in jail is even more telling. It is as if Hong Kong’s civil society is being jailed.

One can only wonder what the Department of Justice was thinking in pushing the courts to lock up so far 16 of Hong Kong’s dedicated young men and women, over moments of excessive zeal. Is Hong Kong on its way to joining other unsavoury regimes in filling its jails with political prisoners, as the international response suggests? Would prosecutorial restraint have been warranted?

The only logic offered by the government and accepted by the Court of Appeal is “deterrence”. There are deeper social and political issues at stake. Deterring the occasional excess in an otherwise non-violent movement also deters the exercise of valued free expression rights.

To understand the importance of such risk, it is important to know how the Hong Kong political system works. The “one country, two systems” model under the Sino-British Joint Declaration provided Hong Kong with an open rule-of-law-based society, but without the democratic constitutional tools to defend it.

This open autonomous region is lodged under a hardline regime with a strong political ethic of control as a fundamental principle of national security. This regime in its normal practice shows little inclination to exercise restraint.

The executive and legislative branches of the local “autonomous” government are effectively under the appointment and control of the central government, in a largely authoritarian system.

Local officials and appointees depend on Beijing’s approval and have little incentive or inclination to defend Hong Kong’s autonomy or core values.

Rather, the incentives favour a well-developed tendency to lecture Hong Kong on Beijing’s concerns.

The difficult task of defending Hong Kong’s autonomy, rule of law and basic freedoms has been largely left to civil society. Seeking a government that will perform its autonomous role, civil society activists have long promoted democracy as the key to sustaining Hong Kong’s autonomy and associated rule of law, and have kept the drumbeats of freedom alive on the streets by resisting government encroachment.

The local courts have backed this up as the legal guardians of civil liberties. In the common law tradition, this has included restraint in convicting or punishing civil society activists where fundamental rights are at stake. The courts have long distinguished themselves as the only independent branch of government. Will the government’s resorting to the courts to exclude and lock up its political opponents put that reputation at risk?

In protests over Article 23, the high-speed rail, national education, development projects and democracy, civil society activists have long represented core concerns of Hong Kong people.

In the face of countless lectures about how grateful people should be for Beijing’s kindness in giving Hong Kong its freedoms, Hong Kong people have stood their ground to defend those freedoms, as they did again over the past weekend.

Given the complicity of the Hong Kong government in assisting Beijing’s efforts at control, one can only wonder what sort of Hong Kong we would have today without this pushback from civil society. Alternatively, if Beijing had fulfilled its Basic Law promise of democratic reform, would Hong Kong have been more peaceful and less contentious?

Hong Kong civil society has faced a parade of difficult challenges. In Beijing’s 2014 white paper on “one country, two systems”, Hong Kong lawyers and activists were accused of a “confused and lopsided” view. We were told all guarantees in the Joint Declaration and the Basic Law come from Beijing and can be taken away by Beijing.

The local parade of challenges have included Beijing’s foot-dragging over promised political reforms, years of pressure on the media through economic rewards and intimidation, the emergence of corruption as Beijing-friendly businesses and elites are favoured, efforts at national education aimed at brainwashing youngsters in Hong Kong schools, and efforts to stack university councils to vet appointments and bring world-class universities to heel.

With the “umbrella movement”, Hong Kong’s civil society stood up against this degradation, to defend the solemn commitments to democracy and the rule of law. While non-violent civil disobedience involves breaking the law, as recognised by the trial judges in both of this past week’s cases, it has a long tradition as a noble last resort. The common law encourages judicial restraint in overseeing prosecutions where such precious rights are involved.

It seems our politicians have not learned the lesson that repression and unwarranted interference under the undemocratic Hong Kong system will invariably encounter civil society resistance. A government that repeatedly does this has only itself to blame for the increased resistance that follows.

Over the many years since the handover, civil society activism – involving hundreds of thousands of protesters – has, with rare exception, been non-violent.

Now three young civic activist leaders have been given six to eight months in prison for essentially, as found by the magistrate at the trial, climbing a fence to claim the “Civic Square”.

In lockstep with Beijing, the Hong Kong government has now taken to using the courts to eliminate its political opposition.

Through the oath-taking saga, with the assistance of a timely Beijing interpretation, it first took control of the legislature. Now it has gone back to the courts to lock up its civic opponents.

It is in this volatile context, in the shadow of Hong Kong’s rich civil society tradition, that locking up the youthful “faces of democracy” in Hong Kong looks pretty much like an attempt to lock up Hong Kong’s civil society.

Professor Michael C. Davis specialises in constitutional law and human rights