tim's experiment

Another week, another outrage. If our government really wishes to improve its public image it could start by discouraging its Chief Executive, Carrie Lam, from giving press conferences, or at least from unscripted ones.

This week’s unhappy inspiration: after two years of stoutly defending its presence in Hong Kong we have abandoned the Rule of Law.

The problem, raised by a reporter, is that Hong Kong’s import and export rules include some restrictions on the transfer of “genetic material” across our borders. Would this, the reporter wondered, be an impediment to sending COVID tests to Shenzhen for processing?

Now Ms Lam could have said that the government had not thought of this, and would check it out and – if necessary – could use emergency regulations to suspend the restriction for COVID purposes. This would have been soothing, and in all probability true.

But faced with the assembled press Ms Lam finds it difficult to resist the temptation to condescend.

“I trust that we have all seen many war movies,” she said, “in wartime there is no sense in talking about procedure and reviewing things … In an environment as urgent as this, we cannot let existing laws stop us from doing what we should do. This is not the mentality for fighting a war.” Full story here.

Dear me. First a reality check. An epidemic is an epidemic and a war is a war. The martial metaphors of which Ms Lam has become a habitual user are just that – metaphors. 

Fussell points out in “the Great War in Modern Memory” that the war as metaphor was almost unheard of before World War 1. So many people participated in that bloodbath either personally or vicariously that great lumps of its verbiage – the front line, no man’s land, in the trenches, over the top and so on – entered the mainstream of language.

That does not change the underlying facts. Hong Kong is not Kyiv. Even if war were an acceptable excuse for throwing the rule of law under a bus it would not be an applicable excuse here.

Governments – particularly unpopular governments – like the military metaphor because it implies that any criticism of them is unpatriotic and may give aid and comfort to the enemy. This is hardly relevant here. The virus does not care what we think of it, or what we think of Ms Lam’s administration.

If Boris Johnson had been making the same point as Ms Lam he would (he is a clown, but a classically-educated clown) have quoted the Roman orator Cicero: Silent enigma leges inter arma or “In times of war the law falls silent”.

But this is a statement of Roman law, not the modern stuff. Modern states entering a war will pass a law – which goes through the same processes as other laws, though commonly quicker – detailing which rights are to be suspended and which extra powers they are taking, for the duration of the conflict.

The new law – in the UK it is known as DORA, for the Defence of the Realm Act – is subject to the same judicial interpretation and restraints as other laws. The conspicuous case is Liversidge v Anderson, decided in 1942, in which Lord Atkins said “In this country, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.”

Having disposed of the legal point we are left with the interesting thought that we have a Chief Executive who derives her inspiration for the finer points of crisis management from war films.

I realise that Ms Lam spends much of her time living alone in Government House and a good movie is a pleasant and rewarding way of passing the evening. But which war films is she watching? Searching my memories of a favourite genre I cannot think of any film which implies, however indirectly, that the head of a semi-autonomous city or indeed the head of state, can abrogate the rule of law, even in wartime.

Clearly Ms Lam’s Netflix repertoire does not include Judgement at Nuremberg, which is mainly devoted to the idea that international humanitarian law is not suspended in wartime. You can imagine her identifying strongly with the Jack Nicholson character in A Few Good Men, but that movie is all law and no war. 

There are, of course, plenty of examples in war movies of people doing things they may later regret in order to preserve their lives. Officers disobey orders they think misguided and other ranks flee, or kill people trying to surrender. But these are not the actions of governments.

It would be nice of someone made a film exploring the moral dilemmas involved in things banned under international law like the use of gas, maritime blockade or the bombing of non-combatants. Such topics, perhaps, do not lend themselves to drama.

Ms Lam might usefully view the rather obscure but watchable The Man who Never Was. This concerns a British deception operation at the height of World War 2, in 1943. The idea was to drop the dead body of a bogus British officer laden with misleading dispatches within reach of German spies.

For this purpose a dead body was required. The country was fighting for its future and the scheme was a life-saver. Nevertheless the team running the operation discovered that all dead bodies are owned by someone, and had to go to great lengths to find next of kin who were willing to give them legal permission to use a corpse for patriotic purposes.

If this search had failed the operation would have been cancelled.

The team were not allowed to say that “in wartime there is no sense in talking about procedure”. The Rule of Law, like other forms of virtue, means nothing unless you stick to it at times when it has a cost.