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You remember that procedure for handling police complaints which was repeatedly and vigorously proffered as a perfectly satisfactory alternative to a proper public inquiry into the policing of recent disorders?

Well however keen you may be on the Independent Police Complaints Council you probably did not realise that more than half of complaints about police matters never reach it.

This is the import of a story in the Hong Kong Free Press about the outcome of two of the most famous complaints: the one about a police person throwing a litter bin at protesters from a Wanchai footbridge, and the one concerning a police motorcyclist who repeatedly aimed his speeding machine at protesters. In both cases there is video evidence.

It has been decided, we were told, that both complaints were “outside the purview of IPCC”. This means the IPCC does not consider them at all. And these are not the only ones.

Complaints to the police are placed in two categories. Some are “reportable” and some are “notifiable”. If they are reportable they get the full IPCC treatment, such as it is. The council gets a detailed report on the investigation by the Complaints Against Police Office (part of the Force, alas, but there we are) including its conclusions and recommendations. The IPCC can reject the report and ask for further inquiries or actions.

If the complaint is classified as notifiable, on the other hand, this is a polite way of saying it has been consigned without ceremony to the nearest wastepaper basket. The IPCC is told that it exists, but nothing more.

Since the beginning of major social events six months ago there have been 1,639 complaints of various kinds about the handling of the protests. Of these 1,338 – more than 60 per cent – were classified as notifiable. May they rest in peace.

It seems – there is some mystery about this because even the IPCC is not told why a case had been classified one way or the other – that the problem lies in the IPCC Ordinance, which says that a complaint must be reportable if it has certain characteristics, which include the complaint coming from the injured victim of the alleged abuse.

The ordinance does not say that the complaint must not be reportable if it does not come from the alleged victim, but that is apparently the interpretation which the police put on this part of the ordinance.

So if you had been standing on a footbridge with a Bishop, a High Court Judge and the chairman of the UN Human Rights Committee, and you had all seen and filmed the motorcycle incident, your complaint would still as it were “fall stillborn from the press,” another reminder that “many a flower is born to blush unseen”. Nothing would come of it.

For the victim, as a former IPCC member put it, there is a fear that “lodging a complaint against the force would have repercussions, such as being charged for taking part in an unlawful assembly.”

The former member, Eric Cheng, inferred that for this reason many cases “were unreported or not followed up”. And so “This reflects the system used in monitoring the police is not adequate in responding to current situations.”

No doubt the thought of “repercussions” does bother some people. A more universal deterrent to potential complainers may be the copious evidence of history, both recent and ancient, that your chances of seeing any meaningful result from a complaint put through this machinery are roughly on a par with your chances of winning the Mark Six.

I realise that some people believe the conduct of the police during the recent disturbances was laudable, and many more no doubt take the more realistic position that it was no worse than you might expect in the circumstances.

But to stand up in public and say that there were no cases of abuse at all requires a measure of wilful self-deception of which an ostrich would be ashamed, though our Chief Executive manages it.  See collection of interesting videos here. Not all forgeries, surely?

The fact is that it would be better for everyone concerned, including the police force itself, if there was a mechanism which commanded public trust to deal with cases of apparent or possible abuse. All we have at the moment is a rather elaborate and expensive way of ensuring that the vast majority of complaints, whether justified or not, are painlessly euthanised.







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The temporary closure of Hong Kong’s universities has accidentally highlighted the very old-fashioned way in which they operate in normal times. In the Middle Ages, when books were scarce and expensive, it was necessary for students to gather round the feet of an established scholar and gather the pearls which supposedly fell from his lips.

Nowadays this is hardly necessary. Unfortunately the one topic which attracts little attention and less research in universities is their own internal doings. Education departments – where some relevant expertise lurks — are regarded as very much the bottom of the prestige pyramid; comments from them on the way more eminent people operate are neither welcomed nor heeded.

So the tools used to insert knowledge into young heads remain for the most part what they were hundreds of years ago: tutorials, seminars and lectures.

The difference between these is the number of people present. The classical tutorial is one and one: student and tutor. In practice the number of students, at least in the early years of the degree course, may creep up to two or three.

What happens is that the student or students read out their essay on the set topic, and there is then a discussion. The tutor, if she is a good tutor, will try to make this a conversation of equals, while guiding the students in fruitful directions. The friendly atmosphere does not detract from the fact that this is a very demanding exercise for the student.

The seminar is bigger, and used to go up to about 12. This is the number up to which, according to the anthropologists, it is still possible to have a conversation, with some guidance from a leader. People speak spontaneously, interrupt (politely, we hope) and interact with each other. As in the tutorial one person reads out his thoughts on the set subject, and these are then discussed.

This is an ordeal for the individual doing the reading. The other people may be tempted to sit back and say little. A good instructor will try to draw everyone into the conversation.

After this we get to the lecture. Up to about 40 this can operate rather like a well-run school class: the teacher will set the topic, advise on readings and other resources, will set out his own views and invite questions and comments, to which she or he can respond.

Above 40 (another landmark for the anthropologists, for reasons we need not go into here) we are in the territory of the mass lecture. In this the instructor really has no choice but to perform. Meaningful two-way interaction with the audience is desperately difficult. Many of them will be unwilling to speak before such a large gathering, even if invited.

This has been a popular method since the 1700s and the only concession to modernity usually offered is a Powerpoint presentation.

Two points to note here. In various subjects there are other requirements: scientists do lab work, law students argue in moots, journalism people produce newspapers, medics have clinical practice and so on. But the basic diet is still as above.

Secondly there has been some inflation in the language used to describe these events. Many so-called “tutorials” are really seminars, “seminars” are so big they should properly be called lectures, and lectures have in some courses become so large – 300 and up students – that they are more like a very sleepy pop concert.

Clearly there are economic forces at work here, as there were at my secondary school, which switched from football to rugby on the very simple grounds that a teacher running a football game only occupied 22 boys, while a rugby match would engage 30.

Universities are propelled by competitive forces to do more research. The league tables measure little else. And this is congenial to their staff, for whom teaching is a chore, while research is what allows them to cherish the hope of being headhunted by Harvard.

So there is a temptation to reduce teaching hours, and spread them further by packing more students into the room. Against this is the dilution of the effect on students. As the number of people in the room goes up the temptation and opportunity to doze, wool-gather or Wechat to fellow-victims on your mobile phone increases.

People who knew which university I had been to would console me at this point with the reminder that the “Oxbridge method” demanded huge numbers of staff which we did not have. I was told this so often that I believed it.

Then one day I tackled a puzzle which had been bothering me for a while: why, if your staff:student ratio is, say, 1:14 do you not find that the average class has 14 people in it? Take it from me: you don’t.

After some struggling – my algebra had lain unused for 30 years and was never very good – I came up with the formula which determines your average class size, and to my surprise the staff:student ratio barely featured. The two important factors were the number of contact hours required of students and the number of teaching hours required of staff.

So actually you have a choice. I found that at our staffing levels we could provide a real weekly hour-long tutorial for an average of two students, with the staff conducting 12 of them a week, which was rather less time than we were supposed to be spending on teaching already. This would drop the students’ workload to one very strenuous session a week.

This was, of course, of no relevance to life as it was then lived at my university, or any other in Hong Kong. But it has become increasingly relevant. Because what the current crisis has revealed is that many of the current interactions between staff and students are unnecessary.

Threatened with a lethal new virus, everyone can retreat to their computer screens. At which point it becomes transparently unnecessary for a lecturer to read his notes to an audience. He can put them up on the internet and save his time for dealing with queries.

Indeed, trying to read them to an audience is emerging, as everyone plunges into on-line learning, as a big mistake. The days have gone when watchers were mesmerised by A.J.P. Taylor lecturing, straight to camera, one take, without notes, or by Brian Horrocks re-enacting the Battle of Arnhem with no more props than a sand-box and two expressive hands.

Modern audiences are accustomed to all-singing, all-dancing entertainment, with lights, action and moving pictures. Faced with a talking head for 40 minutes they lapse into a somnolent state, or start surreptitious conversations on their cellphones.

Teachers at the university level perhaps need to face the fact that talking to large bodies of students is no longer our thing. They don’t need us to impart the basic information which our course requires. It’s all on the net anyway. Students who were not happy with my version of Clausewitz could find the version taught at West Point.

You may think that they could always do this by making proper use of the library, but generally we have never had much confidence in this theory. University systems are usually constructed on the basis that students will devote all their time to sport, booze and the pursuit of the opposite sex unless their noses are kept to the grindstone by constant tests and examinations.

Libraries have other problems. If 300 people are told to read the same book in the same week there are not going to be 300 copies of it there. They hate buying multiple copies because books go out of date. Your copies of Aristotle’s “Politics” may suffice for the next generation, but publishers of text books take a pride in producing new editions which can be advertised as making their predecessors obsolete.

Electronically this is no longer a problem. Indeed Aristotle has been available for years.  Nor are we limited to the classics.  Click here for an introduction to “Glaciers, gender, and science: A feminist glaciology framework for global environmental change research.”

I feel the need at this point, first articulated by Bernard Levin, for a printer’s mark like the asterisk signifying that the writer did not make that last one up.

Given, then, that students can browse the globe in search of information and usually will find it, what are the teachers here for? We have an important new function, which is to teach them how to distinguish, as they forage the global information market place, the gold from the garbage.

We still also have the important old one, to transmit through personal example the approach which will help them in the outside world: curious, sceptical, engaged, tolerant, informed and humane. The challenge for universities is to develop a new approach which fits both what is now possible for the first time and what has always been necessary.

We have not seen much progress on this in Hong Kong. Perhaps the present epidemic, by kicking everyone out of their educational ruts, will have done some useful service.





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Did you forget the great 2009 flu pandemic? So did I. We have all been reminded of it recently, however, by a spate of complaints from fans of the People’s Paradise that China is being treated unfairly during the Wuflu outbreak.

The gist of the complaints goes like this. The US had a flu epidemic in 2009, which was declared a Public Health Emergency and caused quite a lot of cases. But nobody was advised not to travel to the US, there were no travel restrictions, no disruption of international travel and no suggestion that people from other countries should go home.

How unlike the way our dear People’s Republic has been treated since the outbreak of Wuflu, with foreigners fleeing, visits discouraged, Chinese students sent home or told not to come back, and so on.

If you do not remember the 2009 outbreak in the US this is not surprising. The people complaining have quietly transplanted it from Mexico, which is actually where it originated. It was commonly known as Swine Flu, leading a number of countries, including China, to restrict pork imports.

Mexican diplomats lobbied vigorously against any suggestion that the ailment should be called Mexican Flu, so the pigs got the blame. The official name is H1N1.

While this certain did cause a stir it was no Black Death. Fairly early in the pandemic the WHO, bless it, urged people to stop counting. But of those places which disregarded this well-intentioned advice and had good functional reporting and treatment systems in place we can derive some notion of a rather low death rate: Italy 3 million cases, 244 fatalities, death rate microscopic; France 2 million cases, 344 fatalities, death rate 0.17 per cent; Hong Kong 33,000 cases, 80 fatal, death rate 0.24 per cent.

That is not to say that this was a trivial matter. Mexico did all the things we are doing: close schools and universities, shut cinemas and theatres, cancel public events, encourage hygiene.

In the US it was declared a Public Health Emergency, but this is an example of that devaluation of words which tends to afflict the Land of the Free, where every academic is a professor, every ex-serviceman is a veteran and every congressman is a statesman, unless he is obviously senile, in which case he is an elder statesman.

Public Health Emergencies are declared on a wide variety of occasions at the rate of about six a year, including the after-effects of typhoons, hurricanes, wildfires, earthquakes, floods, the “opioid addiction epidemic” and – mysteriously – President Obama’s first inauguration.

The total is swollen by repetitions of existing emergencies — the opioid epidemic has been renewed eight times — and the need sometimes to declare a separate emergency for each of a number of states, so that Hurricane Dorian gets the blame for five separate emergencies in North and South Carolina, Florida, Georgia and Puerto Rico.

Well you get the picture. It’s not the end of the world. There have been a total of 60 declarations of a public health emergency since the last one stemming from H5N1, which was itself renewed four times.

Elsewhere in the world the reaction varied. Most countries had some cases. Some banned travel or suspended flights to all or part of Mexico. China was one of these. A good many, including the European Union health spokesman, did in fact advise against unnecessary travel to the US.

So it seems the complaint of unequal treatment is unfounded. Indeed, in disregarding the role of Mexico in the swine flu proceedings it could be considered dishonest. No doubt the western media are not always fair in their treatment of China, or so my mainland students have usually suspected. But this complaint is not a good example.

We have to bear in mind that the death rate from the new virus remains for now a mystery. It is no good dividing the number of confirmed cases by the number of fatal ones because the number of cases is still increasing rapidly. This means that cases which have reached a conclusion, fatal or otherwise, are being swamped by cases whose outcome has not yet been decided.

So people are cautious, and rightly so. It seems rather unlikely that the US is unusual in this respect. China or its defenders are perhaps being too sensitive. Consider the response of a fellow-member of the International Black Hat Club, as reported in the Guardian:

“Russia, which reported two confirmed cases on 31 January, has halted most of its air traffic to China since the start of the outbreak. Trains connecting the country to China and North Korea have also been suspended. Meanwhile, Moscow has temporarily halted issuing work visas to Chinese citizens. Students who returned to their homes on holiday for lunar new year have been asked not to return to Russian universities until the end of March.”

Under these circumstances governments are bound to look with a less welcoming eye at international travel. It may be that bans or restrictions on comings and goings are not very effective. But at least they enable leaders to give the impression that something is being urgently done.

This small trick seems to be beyond the abilities of the Hong Kong government. Our local leaders are a bright bunch. As a result they are rediscovering a truth noticed long ago by the Roman orator Cicero: “The more subtle and astute a man is, the more he is hated and distrusted once he has lost his reputation for honesty.”


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It is nice to see that official ingenuity is spreading the load of opposing the Wuflu around the community. Last week the Labour Department suggested that employers of Hong Kong domestic helpers should encourage the helper to stay in their employer’s home on their days off.

To add insult to injury this was described as “staying home”. The idea originated in the Labour Department but it was defended at a later press conference by our Chief Executive who, as you might expect from someone who needs help to get through an MTR turnstyle, doesn’t seem to have much idea of what life for domestic helpers is like.

The ostensible purpose of the suggestion is to reduce “social interaction” by cutting out opportunities for people to get together.

There are some problems with this idea, though. Many domestic helpers have no space of their own at their employer’s place. Many others have a space so small that in some countries you would be prosecuted if you kept a dog in it. Sometimes there is no window.

In short, for many of these ladies the space offered at “home” is not the sort of place in which you would wish to spend 16 leisure hours, even if the alternative was a prison cell.

Calling this “staying home” also betrays a fundamental fallacy. Telling a domestic helper to spend her day off at her employer’s place is not telling her to stay at home, it is telling her to stay at work.

Sitting on a sheet of cardboard in Central with a few friends on Sunday is as near to “home” as these ladies get.

There is also the question of what happens on the other six days of the week. Generally a domestic helper is expected to do the food shopping for her employer. This entails a trip to the local wet market, which is why in Hong Kong wet markets (if you ask your chauffeur nicely, Carrie, he will tell you what a wet market is) many of the stall holders speak English.

So our government is, it appears, quite happy to have domestic helpers running around the place on weekdays doing errands for their employers. It just wants them to, in effect, forgo their day off.

The Labour Department’s official announcement included the charming detail that asking your domestic helper to work on her day off was a criminal offence. They did not say how many people had been prosecuted for this offence in the past, so we are free to suspect that the figure is zero. It’s not as if there were hordes of officials dedicated to the work of protecting domestic helpers from exploitation.

I realise we all want the spread of the dreaded virus to be curtailed as much as possible. Helpers, along with the rest of the population, may and perhaps should be urged to avoid large gatherings and to consider before going out whether their journey is really necessary.

But this does not justify urging employers to imprison their employees on what is supposed to be a day of rest, even if you call it, as the Labour Department did in its press release, an “appeal to employers to explain the special circumstances in discussing rest day arrangements with their FDHs”.

And whose side is the Labour Department supposed to be on? The workers? With friends like that, who needs enemies?

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Goodby, by-elections

The government has found an interesting solution to the two vacancies in Legco created by the disqualification of two members by the High Court on January 3.

There is a nice ironic twist to this: the two members were disqualified because the Returning Officers (The District Officer wearing another hat) had refused to allow another candidate to run in each of the constituencies concerned, because of the government’s wish to weed undesirable candidates out of the election running.

This weeding is, surprisingly, legal, but there is a condition: the candidate to be ruled out must be given an opportunity to defend himself in writing before the Returning Officer ditches him or her. This condition was set down by a High Court judge but a surprising number of legal luminaries, including Grovel Crossly, thought it was a mere recommendation.

Well it wasn’t. The two candidates were unlawfully excluded so the result of the election is void. Hence the two vacancies. In other words, this is entirely the government’s fault, and in particular the fault of the Electoral Affairs Commission, whose sole job is to see that elections are run according to the rules.

Well, the interesting solution to the two vacancies is that they will be left vacant. There will be no by-election to fill them. This decision is unlawful, disreputable, and dishonest.

Let us start with the law. The Basic Law says that upon a vacancy occurring a by-election must be held. The only restriction is that no by-election should be held in the last four months of the Council’s term of office.

No exception is made for administrative convenience, the possibility that the EAC has other things on its mind, or indeed that the term of office of the member elected in the by-election may be rather short.

The current Legco expires next September, which means no by-election can be held in June or later.

The EAC’s excuse (it would be too flattering to call it a reason) for ducking its legal obligation to hold the two by-elections is, according to its formal statement, that “it is not possible to hold the two by-elections … before the statutory deadline”.

The statement cites the need for “an enormous amount of manpower and resources”, and of course “the current social situation”, though that situation did not prevent the holding of territory-wide district council elections.

Now let us look at the practicalities. Holding by-elections is like dealing with typhoons or visits from Pooh. It is an unusual event which demands some repurposing of resources usually used elsewhere, to deal with the temporary demand. This should not be beyond the capacity of a competent administration and it didn’t used to be.

Between 1991, the first ever Legco by-election, and 2010 there were seven by-elections. Five of them were held between two and three months after the vacancy occurred. In the two exceptions the gap appeared unexpectedly in August and was not filled until December, four months later.

So it is clearly possible for an administration with its eye on the ball to hold a by-election in three months if it really wishes to do so.

It is interesting to compare the situation in 2010, when five councillors resigned simultaneously to provoke a “referendum”. The government was no doubt in no hurry to grant their wish and had a good excuse because it had to organise five simultaneous by-elections territory-wide. Still, the vacancies appeared in January and the by-elections were held in May.

We may wonder if the officials concerned are setting new records for idleness, or for incompetence. We may also wonder if the government has been influenced by the knowledge that the by-elections, if held, are unlikely to produce a result which it will welcome.

The fact is that there has been too much fiddling with elections already. My constituency has been one councillor short for all of the current session of Legco and was two short for most of it.

The Electoral Affairs Commission has just one job, and it has lamentably and totally failed in it. It is the Commission’s job to ensure that elections are held expeditiously under known and legal conditions. Yet we have had councillors in an out of office and in and out of court for years. The Commission is a shambles.

When the need for a by-election does come up you get the sort of response you would expect if you had asked the government to run a monorail through Central: Oh dear! The resources! The manpower! The premises! So difficult! The horror!

The situation also shines an unflattering light on those judges for whom we are annually exhorted to admire. Some cases are urgent, some are not, and some are so urgent that if the law operates at its usual speed the result will be meaningless.

Disputes concerning elections are in the latter category. The elected person quits his job, hires assistants, buys office equipment, rents surgeries, and then discovers that he or she may or may not actually be a councillor. The seat is vacant, the assistants are fired, the “councillor” is unemployed. The constituents who voted for this person are now represented by an empty seat.

Years go by, teams of lawyers do battle, and the elected person discovers that he was not, as it happens, elected. This is disturbing. The Electoral Affairs Commission at this point is stunned by the discovery that its services may be needed and takes six months to decide not to hold a by-election.

Hong Kong officials complained the other day about an international body which had categorised us as a “flawed democracy”. They should think themselves lucky. The category “joke democracy” was not available.






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It is difficult to take seriously the government’s claim that it respects Hongkongers’ fundamental rights and freedoms, when officials find it so difficult to talk honestly, or even accurately, about them.

Consider a story the other day which started like this: “Education Secretary Kevin Yeung has denied infringing upon teachers’ freedom of speech by penalising them for what are regarded as inappropriate comments on social media.”

This paragraph was entirely borne out by the ensuing story, and indicates a truly shocking state of denial … or ignorance.

Now watch closely Kevin: inappropriate comment + penalty = infringement of right to comment. It may be a justified infringement, a lawful infringement, or a trivial infringement, but infringement it is. Denying this fundamental feature of the situation suggests that we have a Secretary for Education who should not be teaching in a kindergarten.

And of course this is true. Reputable educators are strangely reluctant to join what its leaders laughably call the “government team”. Mr Yeung joined the ranks of the political and (supposedly) accountable secretariat after a blameless career in the full-time civil service.

He was announcing a rather sordid exercise in which the Education Bureau is pressuring school principals to take action against teachers with political views which the government disapproves of. That is not, of course, quite how they put it.

Principals are required to investigate complaints about teachers, whether they concern the teachers’ work or not. And then?

“Yeung said that – if a school believed the teacher did nothing wrong – the bureau may consider the attitude and stance of the school and principal to be problematic. ‘If we believe a principal is unfit to discharge their duties, we can dismiss them as principals. Every principal is appointed by the Permanent Secretary for Education. We have the legal power to do so, but we will be very careful to exercise this power,’ he said. ‘If the situation is serious to the extent we believe the principal cannot even be a teacher, we can cancel their teacher qualifications,’ he said.”

In other words, dear principal, if you are an insufficiently enthusiastic participant in the Inquisition you will not only lose your job as a school principal, but will be disqualified from teaching of any kind.

It is appalling that the education officials are prepared to make such spectacular sacrifices on the altar of political correctness. Hunting for “inappropriate” verbiage on teachers’ social media feeds is a very minor part of a principal’s job. Good principals are hard to find and removing one is disruptive. Have we no sense of proportion?

In his latest defence of this policy Mr Yeung seemed to be offering a sort of way out. He told Legco that “schools must provide a reason if they don’t investigate complaints against teachers who are accused of being ‘unprofessional’ over their activities linked to the ongoing anti-government protests.”

So let us see if we can provide some helpful suggestions. Teachers who post things on-line outside office hours are still citizens of Hong Kong and enjoy the right of freedom of speech as provided in the Basic Law and the Bill of Rights Ordinance. Both these instruments provide that restrictions must be “provided by law”. They do not make exceptions for teachers, or any other professional groups.

So the fact that some members of the public think a comment is “inappropriate”, or that the Education Bureau agrees with them, is not relevant. The complainant should be told that if he or she believes the offending comment is illegal it should be referred to the police. If it is believed to be unprofessional it can be referred to the relevant professional council.

If it is in neither of those two categories then it is an exercise of the constitutional right to free speech which principals, like the rest of us, are supposed to protect.

No doubt this will result in no action being taken about some postings with which many of us would profoundly disagree. This is a bearable outcome. The idea that children who can barely be persuaded by bribes or threats to crack a textbook are voluntarily spending their free time looking at their teachers’ social media posts is outlandish.

It seems most of the complaints are about social media posts, but some are of “inappropriate” teaching materials. Now clearly the principal is perfectly entitled to take an interest in what is going on in his classrooms. It is his responsibility to ensure that teachers are fulfilling reasonable expectations of teaching content and methods.

Principals will, one hopes, be more aware of the difficulties facing teachers in the current atmosphere than the complainants are. Students are expected and encouraged to take an interest in current events, to read newspapers and to discuss their contents.

Teachers will of course be well aware that this is not an opportunity to impose their views on students or even, indeed, to expound them. One tries to stick to the facts. But sooner or later someone is going to raise a hand and say “Sir, what do you think?”

At this point almost anything the teacher says will offend someone, if accurately reported, and if inaccurately reported – as is quite likely – may offend a lot of people. But we would not, I hope, expect him to lie.

The depressing thing about all this is that the government has clearly succumbed to the bombardment of complaints from the pro-Beijing corner that all our recent travails are a result of the failings of the Hong Kong education system.

In the more lurid versions of this, which you can find in the English-language version of the China Daily, it is traced right back to kindergarten where, a recent op-ed writer complained, children had been told that in China the rivers were polluted and in America they were not.

Similar nutty stuff proliferates. One charming suggestion was that the local universities could be closed. All existing students should be sent to mainland universities where they would be “straightened out”.

By an interesting coincidence the Economist reported only last week on a piece of research which set out to test the theory that educated people in America tend to be democrats because of their exposure to four years in liberal-infested universities.

Not so. Students’ political views were carefully tracked over the four years and did not change a bit. Nor is this surprising. Most university courses offer no opportunities for political indoctrination even if the teacher is so unscrupulous as to attempt it.

This lump of scientific evidence will of course have no effect on people who wish to believe that the absence of national education is the root of all evils. But this sort of rhetorical overkill threatens to turn a civic dispute into a civil war.

The most distressing recent story was of a young lady who barred her father from her own wedding because he was a policeman. It may be that the gentleman concerned is a tactless martinet who was, as they say, asking for it. Still it seemed to me that this was the sort of decision which might lead to bitter regret in a year or two’s time.

Some of the published comments from the other side also look like a prolific cause for retrospective embarrassment. It seems that if the level of violence is declining the level of verbal abuse ought to subside a bit too.

The other night I caught a government ad — or Announcement of Public Interest as they call it – for peace and quiet. It started by appropriating the old CND symbol. This was an error: the CND logo incorporates the semaphore signals for ND, meaning nuclear disarmament, which is hardly relevant here.

The ad went on to say “Say ‘no’ to violence”, a bit rich from people who are so generous with tear gas and other street lubricants. When governments say no to violence they are merely seeking to preserve their monopoly of it.

Then we had “Give peace a chance”, in what I fear is not quite the sort of context which John Lennon intended when he penned the phrase. But still, a worthy sentiment. Mr Yeung needs to get with the programme. If the government is losing on the streets then opening a new front in local classrooms is not the way to peace, only to conflict of a different kind.












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Well it looks as if the legal world, as far as Hong Kong is concerned, is not going to come to an end, or at least not yet.

In November the Hong Kong High Court heard a challenge to the legality of the government’s new law against the wearing of masks, enacted by the Chief Executive, solo, under the Emergency Powers Ordinance. Was it compatible with the Basic Law of the Hong Kong Administrative Region, which is our local constitution?

And the judges ruled that it was not. This was for two reasons: one was that the Basic Law explicitly confers on the Legislative Council the right to make laws. When the ERO was passed, in the 1930s, the Governor was the source of all laws. He was expected to seek the advice and consent of the Council first, but dispensing with this when haste was required did not involve a major change in principle.

The Chief Executive of the SAR, on the other hand, is not supposed to legislate, so the idea that an old colonial ordinance could confer the right to do so was a stretch, and the judges thought it was a stretch too far. No doubt they were helped to this decision by the government’s insistence that the situation, though grave, was not an emergency.

The other problem with the mask law was the matter of the Bill of Rights Ordinance and the Basic Law’s explicit endorsement of it. This permits infringements of rights in some circumstances but sets standards and limits.

The right to demonstrate in public is a part of freedom of expression, and the wish to do so without being photographed is in Hong Kong’s circumstances both understandable and worthy of protection. So a law which banned masks at any and all protests, and authorised a policeman to require the removal of a mask under any circumstances he wished, was excessively broad.

Clearly the judges’ decision was not welcome to the government, which immediately said it would appeal, or to its supporters. No doubt it was not welcome in Beijing either, but the response from there was interesting.

As RTHK put it: “Jian Tiewei, a spokesman for the legislative affairs commission of the National People’s Congress Standing Committee, said that both the national constitution and the Basic Law provided the constitutional basis for the Hong Kong Special Administrative Region. He said that on this basis, the question of whether any Hong Kong law was constitutional or not could be judged only by the NPC.”

Cue legal horror. Some lawyers said Mr Jian was wrong, some said it was a difficult legal question, some said that Mr Jian was right, or at least was pointing to a manifest contradiction in the relevant laws. Did this presage another “interpretation” of a Hong Kong court case?

Actually what seems to have foxed Mr Jian was the word “unconstitutional”. Clearly it would be an impertinence for Hong Kong judges to decide that a law was inconsistent with the constitution of the PRC. On the other hand in Hong Kong parlance “unconstitutional” just means incompatible with the Basic Law. And if the Hong Kong courts cannot, when it comes up, consider that… well then they are hardly courts at all.

This was recognised by the drafters of the Basic Law, and the relevant Article (158) goes like this: “The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress.” It is a serious error to stop reading at this point, because the next sentence says  “The Standing Committee of the National People’s Congress shall authorize the courts of the Hong Kong Special Administrative Region to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region.”

The use of the word “shall” is explained by the fact that the Basic Law was promulgated before the Handover.

In case we are left with any doubts the next bit of Article 158 starts “The courts of the Hong Kong Special Administrative Region may also interpret other provisions of this Law in adjudicating cases.” It goes on to lay out a procedure for cases  “concerning affairs which are the responsibility of the Central People’s Government, or concerning the relationship between the Central Authorities and the Region” which must be passed, via the Court of Final Appeal, to Beijing and Mr Jian’s committee.

We are left with several possible explanations for Mr Jian’s view that the NPC alone has the right to consider the constitutionality of Hong Kong laws. One is that in his view “the limits of the autonomy of the region” are now so shrunken that there is no space left inside them for Hong Kong courts to operate without his assistance.

Another possibility is that we are being treated to another instalment of a familiar but unloved mainland legal manoeuvre, an announcement from a senior official that the law means what the government wants it to mean, not what it says.

The third one is that Mr Jian not only does not know much about the Basic Law, but as happens in most places where senior officials are surrounded by yes-men and nodders (P.G.Wodehouse: a nodder is a yes-man who is too frightened to speak) he does not know what he does not know.

The curious thing about this scene is that there is no practical difference at stake. If the government chooses to treat this as a matter concerning the Central government or the relationship between it and the region, then Mr Jian’s committee may eventually be invited to declare that the Emergency Regulations Ordinance is in fact compatible with the Basic Law, and this part of the judges’ decision will be over-ruled. The mask ban will still, though, fall foul of the Bill of Rights Ordinance, which is an ordinary Hong Kong piece of legislation and, in the ordinary way, takes precedence over older laws, of which the ERO is one.

So we may see a long legal struggle in search of a partial victory of no practical significance. This could take so long that by the time the mask ban’s fate is decided the wearing of masks is no longer a hot issue.

Contemplating this prospect our leaders might do well to contemplate the implications of Mr Tsang Yuk-sing’s summary: “In the last five years, the Hong Kong government and many of my colleagues in the pro-government camp thought that we were winning victory after victory; but every time, people became angrier.”

Would it perhaps be conducive to the respect for the Law which we all wish to see, if the government learned how to lose gracefully?






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