tim's experiment

This joke has gone on long enough. I am prepared to believe that the system of government on the mainland is effective in many ways. It can certainly be argued that most of the population are content with it, although in view of what happens to those who express discontent this is hard to establish.

By no sensible stretch of the meaning of the word can the Chinese system be described as democratic. Yet that seems to be the current line.

Of course it is “democratic” with a prefix. There is a long history of this sort of thing. When military take-overs were frequent events in the 1960s it was noticed that the resultant regimes frequently described themselves as a new variation on Democracy, dignified with a prefix: Authoritative, Developmental, Alternative, or in one case just New.

These interesting concepts were generally dismissed outside the country where they were the official theory of government, as a mere cosmetic effort to keep a despotic regime in the “Free World” where it would continue to receive American largesse.

This however is not the explanation for what has come over explainers of the Chinese system, of which this (from the China Daily) is a representative example: “The Chinese mainland is well known for putting the concept of “whole process democracy” into real practice. Our country has successfully converted the vision and values of democracy into a scientific, institutionalized system.”

And how does that work, one wonders? Here is the Global Times (spotted by Hemlock): “Whole-process democracy integrates process-oriented democracy with results-oriented democracy, procedural democracy with substantive democracy, direct democracy with indirect democracy, and people’s democracy with the will of the state.”

Well democracy is an easy-going lady, willing to consort with a wide variety of systems and habits, but I don’t think she is as broad-minded as that. It’s a fuzzy concept and nobody suggests that there is a clear dividing line. But that does not mean the difference between democracy and non-democracy is a trivial matter.

Most writers come up with three or four accepted variations: direct or participatory – the town meeting or the Athenian assembly; elitist – where leaders are chosen by the public from a limited group; and pluralist – where groups compete with each other to influence policy.

Some people have a separate category for “social democracy”, meaning the idea common in Europe that the state has a wide range of responsibilities for the health and well-being of citizens.

The longest list I could find is from an Indian student who gets up to eight: Direct democracy, Representative democracy, Presidential democracy, Parliamentary democracy, Authoritarian democracy, Participatory democracy, Islamic democracy and social democracy.

Authoritarian democracy looks like a contradiction in terms. It is reserved for two polities: Russia under Putin and Hong Kong. Yes, and I’m a bit dubious about the Islamic one too. But of Whole Process Democracy there is no sign.

Nor is there any sign of that commonplace of mainland propaganda, often preceded by “so-called”, the spurned “Western democracy”.

It seems that defenders of democracy have the same problem as defenders of medicine, who struggle to get over the message that there is no such thing as conventional medicine, or alternative medicine, or traditional medicine. There is just medicine, which is the stuff which can be shown to work.

There is nothing particularly Western about democracy. The largest example is India. In some ways the most successful one is Japan. Dare we mention Taiwan?

While it may be difficult to define exactly what is democracy, it is easy to identify some characteristics which are incompatible with it. Aristotle, who gets some of the blame for originating the idea, said that “the basis of a democratic state is liberty”. John Locke, who gets some of the blame for the American revolution, said that no government could be legitimate unless it enjoys the consent of the governed, and that consent cannot be rendered except through majority rule. John Stuart Mill said that restrictions on the expression of opinions are never justified. The 20^th century political theorist Robert Dahl concluded that “because democracy is not only a political system of ‘rule by the people’ but necessarily also a system of rights, a government which infringes those rights is to that extent undemocratic.”

Mr Dahl also offered a set of requirements for a democratic system. It should include:

I do not think it is possible to see China meeting these requirements, even if you are prepared to overlook what the Economist recently described as “a form of tyranny in which individuals are crushed for displeasing the party, whether feminists, human-rights lawyers, gay activists, creators of art deemed “unhealthy”, underground Christians or Uyghurs.”

It is natural for countries to aspire to democracy, or if that is inconvenient for the democratic label.

Mr Dahl again:

History—particularly 20th-century history— demonstrates that democracy uniquely possesses a number of features that most people, whatever their basic political beliefs, would consider desirable: (1) democracy helps to prevent rule by cruel and vicious autocrats; (2) modern representative democracies do not fight wars with one another; (3) countries with democratic governments tend to be more prosperous than countries with nondemocratic governments; and (4) democracy tends to foster human development—as measured by health, education, personal income, and other indicators—more fully than other forms of government do.

We must recognise that countries following non-democratic paths may also achieve the happy results of avoiding cruel autocrats, not fighting wars, getting rich and fostering human development. Good for them.

But there is a simple logical trap here. Just because all dogs have four legs it does not follow that all animals with four legs are dogs. Achieving peace, prosperity and development while avoiding viciousness is praiseworthy, but does not demonstrate democracy.

We must all hope that the mainland has found its way to an effective and successful system of government, if only because that system is the gift which is now being bestowed on us. But democracy it is not.

Our Chief Executive seems to be trying to confuse us. Earlier last week she gave an exclusive interview to the Global Times.

Why would a busy official like Mrs Lam waste her time on a publication which few people in Hong Kong read? She’s a woman of the people, folks. The Global Times is a sort of National Inquirer without the UFO stories. I’m sure she reads it every day.

The pearl extracted from this unpromising oyster by local reporters went like this: “There is a saying that when the government is doing well and its credibility is high, the voter turnout will decrease because the people do not have a strong demand to choose different lawmakers to supervise the government. Therefore, I think the turnout rate does not mean anything.”

Really? Day after day we have been bombarded with printed exhortations to “Vote for Hong Kong”. Senior officials, including Ms Lam, begged us to do our duty. National security enthusiasts warned that urging people not to vote was a recently created criminal offence.

Where did this unlikely “saying” come from? It is apparently beyond the reach of Google. Can it be that Ms Lam made it up? Cynics will suspect that our leaders expect the turnout to plummet and are now trying to get their excuses in first.

But the implications of the new view are rather depressing. Are we now to suppose that the law against urging people not to vote is superfluous? If refraining from voting is a way to express approval of the job the government is doing, why should people be prosecuted for urging their fellow citizens to offer their support in this way?

We should have some specialised parties to make the most of this opportunity to put your opinion painlessly. We could have Lam Loving Layabouts, Couch Potatoes for Communism, Sun-bathing Supporters of the Status Quo. Non-voters could gather in some convenient pub and have a real political party.

Mind you Ms Lam does not seem to have thought out the implications of the “saying” very carefully. If you vote for a government-approved candidate (the only kind on offer these days) you will be supporting the government. If you don’t vote you will be congratulating the government on doing well and having high credibility.

Voters have only one way to express disapproval of the government, and that is to spoil the ballot paper. I don’t suppose this is quite what Ms Lam was hoping to encourage, but that is the clear implication. No doubt the ICAC will be looking into it.

We occasionally hear complaints that the Immigration Department takes very little interest in what happens to domestic helpers once the employment contract on which the department insists has been signed and implemented.

This now appears unfair. The department is not interested in the parts of the contract which concern such trivia as the helper’s hours, accommodation, food or pay. But it is manfully struggling to enforce one item – the duration.

Because of COVID there is currently, it appears, a shortage of helpers. This has led to some potential employers offering terms better than the minimum required, and some helpers wishing to change their employer as a result.

This, you might suppose, is the normal operation of economics at work. A commodity is scarce, so those offering it become more valuable. This is an example of market forces at play, something of which our government has traditionally been fond.

Not, it seems, where foreign ladies on the standard contract are concerned. The Immigration Department, according to a local tree carcass, is determined to combat “job-hopping, which is when domestic helpers prematurely terminate their employment contracts or deliberately perform poorly to force their employers to fire them to change employers.”

Statistically this is apparently a growing problem, if it is a problem. In the first ten months of this year the department approved 340,000 domestic helpers visas, of which 10,153 involved “premature” changes of employer.

Some 4,400 cases were “suspected of job-hopping”, (compared with 1,776 cases last year) and 1,748 were actually denied visas on this ground, compared with 319 last year.

The example offered by the department spokesman went like this: “For example, the department received a premature termination of the contract earlier, claiming that she was treated poorly …after contacting the original employer, the officers found that the helper asked for a pay rise and resigned after finding a new employer. Therefore, both her compensation and visa application were denied.”

As a way of detecting abuse this is distressingly one-sided. “In suspicious cases,” the department spokesman said, “the department will contact the employer to find out the reason for early termination and will deny visa applications in cases of confirmed job-hopping.”

Surely this is a rather naive way of settling the matter. After all the employer has his own interests to consider. He wishes to employ another helper. So if contacted by the department he is not going to say “I don’t know why she left. But the fact that we expected her to work 16 hours a day and sleep with the dog may have had something to do with it.” Much easier to say she had another job offer, although why the helper should have shared this interesting piece of information with her ex-employer is a puzzle.

The standard contract is interesting on the matter of termination. The employer has a wide range of options – disobedience, conduct “inconsistent with the true and faithful discharge of his/her duties”, dishonesty, is “habitually neglectful in his/her duties, and any other ground on which the employer would be entitled to terminate without notice at common law.

The employee’s options are more limited. They start with: “if he/she reasonably fears physical danger by violence or disease which was not contemplated by his/her contract of employment expressly or by necessary implication.”

I do not know what was going through the mind of the person who wrote this, which comes from the Immigration Department’s “Explanatory Notes”. Does the department think that some contracts expressly or implicitly require domestic helpers to put up with violence or disease?

Then we are offered “ill-treatment”, which is not defined, and the common law thing.

This, however, appears to be rather a poor explanatory note. In the Department’s FAQs for employers it says that “An employer and his helper alike may terminate the contract prior to its expiry by giving not less than one month’s notice in writing or by paying one month’s wages to the other party.”

This is the usual arrangement for most of us and I do not see why the department should be abusing its powers over work visas to make it difficult for foreign domestic helpers to do the same thing. No doubt it is very inconvenient for some employers to lose their helper early. But this is a hazard of employment generally. Just when you’re happy with the new recruit you get a slap from the invisible hand and she leaves for another job. As Saki quotably wrote: “The cook was a good cook, as cooks go; and as cooks go she went.”

Rich people have been complaining for centuries about the difficulty of finding and keeping servants. It is not the job of the Immigration Department to protect the interests of employers by punishing employees who resign to go to a better job. Job-hopping is not illegal. Paying a helper more than the stipulated minimum is not illegal either.

And in view of the government’s lamentable record in protecting, or rather failing to protect, the interests of foreign domestic helpers, so that the provisions of the standard contract are in many households an entertaining work of pure fiction, the right to change employers is probably the best protection they have.

The search for national security frequent flier miles is leading some of our leaders to strange places.

While nobody was looking the Security Bureau has hatched the interesting idea that all the government’s uniform-wearing departments should sprout uniformed youth groups. This is an attempt at a “do-it-yourself” patch for the education system, which in the view of security fanatics is failing to inculcate acceptable quantities of discipline and patriotic enthusiasm.

I stumbled across this by accident. In a government press release on a Customs and Excise event it said that “Customs Youth Leaders” had run a game stall. Who they?

Over to the department’s website, where all is revealed: “The Customs Youth Leader Corps is a new youth uniformed group established by Customs under the ‘Customs YES’ programme. It aims to help members boost their self-confidence and develop team-oriented leadership skills through disciplinary training, regular drills and different education-oriented activities, thus paving the way for them to become distinguished youth leaders in the community.”

The Customs YES programme has been running for 10 years or so – easily predating current political strains — and involved the usual sort of visits, excursions and such for school or youth groups. No doubt the original intention was to boost recruiting. The uniformed bit is the new thing.

The atmosphere pervading the new activity can be gauged from this report in the pro-government media of a visit to a local PLA base: 

“Customs hopes that, through this visit, members of the CYLC would have a more comprehensive understanding of the motherland and the people’s army, as well as a deeper understanding of the splendid civilisation and magnificent achievements of the Chinese nation. Moreover, by viewing the models of the PLA’s military equipment, the members could witness closely the PLA’s advanced development in military equipment and its glorious history in maintaining Hong Kong’s long-term prosperity and stability. All of the members also expressed their excitement and deep encouragement after the visit, which has enabled them to correctly understand national affairs and strengthen their recognition of national identity.”

It’s magnificent, but it’s not journalism, to paraphrase General Bosquet.

Well naturally I wondered, who else is getting up to this sort of thing; surely not the Correctional Services Department? Oh yes. “Rehabilitation Pioneer Leaders is a youth uniformed group established in July 2018. Youngsters with leadership potential are recruited, brought together and offered diversified training with a view to broadening their horizon, developing their potential and discipline as well as strengthening a sense of social responsibility. They are also encouraged to actively contribute to the society in future by helping promote law-abiding and inclusive values for a better Hong Kong.”

The possibilities in this one look really interesting. The department offers visits to “institutions” (prisons) and chats with PICs (persons in custody or, as we used to say, prisoners). Also the inevitable summer camp only lasts three days, which suggests that the usual orgy of foot drill may be omitted.

With a sinking heart I turned to the Immigration Department, which offers this: “… the Department has launched a new youth training programme, namely ‘Immigration Department Youth Leaders’. It aims at providing disciplinary and leadership training to students of Secondary 3 to Secondary 6 so as to help them foster positive values and the spirit of serving the society, as well as to widen their horizons.”

And eventually, to where all this should perhaps have started, the meeting of the Legco Security Panel last September, which actually had a menu item on the subject of uniformed department youth groups, and a government paper on the subject. In which, further horror, we find the Fire Services Department: “FSD aims at recruiting about 200 students for the uniformed group in the 2021/22 school year. FSD plans to arrange regular foot drill and various training programmes for the uniformed group.”

The Security Bureau also notes that the Civil Aid Services and Auxiliary Medical Service both have cadet branches. These have been around for a long time and are not really quite the same sort of thing.

Why, you may wonder, is the Government Flying Service not roped in for the cause? It seems they get off the hook because it’s a very small department and they already do a lot of cooperative stuff with the Air Cadet Corps.

Apart from the GFS it is evidently the bureau’s view that every department in its territory should have a uniformed youth wing. The Security Panel, as far as one can tell from the minutes, swallowed all this happily and asked for more.

In a sense all this is nothing new. The Police have had a youth wing for a long time, the Junior Police Call, for which they rather implausibly claim an active membership of 170,000. For a long time this has performed the useful function of providing young people with a friendly encounter with the Force before they reach the prime age for being stopped and searched in MTR stations.

Even by other standards the new bodies are quite small. Those launched in the other departments only run to about 800 members altogether. The Boy Scouts, who are generally considered the largest of the civilian (or at least non-government – they are all pretty militaristic) uniformed groups, have 95,000 members. The CAS and AMS have over 6,000 between them.

No doubt the departmental groups, which seem to have no financial constraints and can offer interesting experiences beyond the reach of civilians, will grow and prosper. Nor is this the upper limit of the Bureau’s plans: “Security Bureau is considering establishing an elite youth leadership corps by selecting outstanding members from various uniformed groups. More diversified and valued events, such as training camps specially designed for elite youth leaders, becoming work shadows of government officials or summer internship opportunities, will be provided to them, with a view to grooming them to become the pillars of our future society.”

And the question which all this raises, or at least the big question, is whether we want the national security people to have a side gig running youth organisations, and whether in particular the Security Bureau is the right place to be selecting and grooming the “pillars of our future society”.

Ibsen wrote that “The spirit of truth and the spirit of freedom … are the pillars of society.” These do not seem to be a major preoccupation of the Security Bureau.

And after all bureaucratic government is based on the notion of division of labour. Education is a matter for the Education people and Security is a matter for the Security bods. The care and feeding of uniformed groups, as it happens, has hitherto been left to the Home Affairs Bureau, which subsidises 11 of them. Other services to youth come under the Social Welfare Department.

If another bureau is going to trample in this area we may see disputes over fairness and equity. Will the Young Customers, or the Young Immigrants, be seen to be spoiled compared with the Boys Brigade and the Girl Guides? Will established organisations be happy to see an influx of lavishly-supported competitors, possibly followed by the departure of their “outstanding members” to the new super-group?

The needs of youngsters are already inconveniently split between Home Affairs, Social Welfare and Education. Bringing a fourth party in is perhaps going to lead to confusion and incoherence. We may also wonder about the effect on the departments concerned. The CAS and AMS have cadets because they have useful work for cadets to do. Merely showing the future pillars of society the departmental ropes may become a nuisance.

I also have other worries. Let me insert here that I used to be a youth leader and, later on, a trainer of other youth leaders. Training is necessary. There is a difference between leading a youth group and training new departmental recruits. Fundamentally a youth leader has to convince his charges that he is there to serve their needs, not for them to meet his or someone else’s.

Then there are other possible problems. No doubt everyone involved appears to be propelled by the highest motives, but that is what we used to think about the Catholic Church.

Many years ago a HKU scholar actually did a research project on uniformed groups in Hong Kong and concluded that “participation in uniformed groups was associated with higher levels of social skills, helping attitudes, and leadership”. But that does not help us very much in deciding what to do with our young members. Do people with helping attitudes etc gravitate to uniformed groups or do group members become more helpful?

The only curriculum item which seems to be of universal interest to the new groups is foot drill. A tactful choice, as the Secretary for Security, John Lee, recently expressed the view that “Marching is an important part of discipline and team spirit training.” But is it?

Some people enjoy foot drill and some people enjoy watching it. I am in both categories. But during many hours of watching this activity between bursts of providing the music for it, I did not see any particular educational merit in it. It has the obvious practical attraction that one adult can keep 50 kids busy simultaneously, and the uniformed departments have plenty of people qualified to teach it. This is not the usual way of choosing your teaching programme.

Anyway I have retired from the parade music business. To Europeans of my generation the idea of teaching kids to goose step is obscene.

If I may make a parting suggestion though, the kids – and the musicians – would find life easier if local parade organisers dropped the ambition to march at a Napoleonic 120 paces a minute. The French Foreign Legion achieves high levels of discipline and team spirit marching at 88.

Some sort of surreptitious purge seems to be going on in Hong Kong universities. People are mysteriously resigning, for “personal reasons” which seem just as spurious as the “business reasons” which are usually adduced to explain corporate departures.

Large numbers of people whose political loyalties did not fit the new regime have been fired, sometimes for rather unconvincing reasons, sometimes for no stated reason, and sometimes for explicitly political offences.

The pro-government press is still baying for more blood, naming individuals suitable for culling with a cheerful disregard for the inhibitions imposed on the less favoured media by the laws of libel.

The justification for all this is the fear that local students have been or may be “radicalised” by the university experience. They arrive, fresh-faced simpletons, in local lecture theatres, only to be corrupted and led astray by secretly subversive professors. Or that’s the story.

This is actually a most unjustified fear. Many years ago the then Vice Chancellor of the University of Lancaster was provoked by repeated complaints about the effect of university life on the morals and politics of students into writing a spirited defence.

Charles Carter, the VC concerned, was an interesting character. He was a devout Quaker who had been jailed during World War 2 for refusing to participate. He was entitled to both Prof and Dr but refused to use either. He firmly vetoed the suggestion that the university’s new campus should include a presidential palace and lived in a rented house in the town nearby.

Charles and I became, rather inconveniently, friends. Student leaders in those days were expected to be at loggerheads with the university administration but we managed occasionally to disappoint both our sets of supporters by failing to disagree.

Charles’s response to the complainers was supposed to be delivered to a dinner for local worthies and supporters… and the press, who of course seized on the most controversial bit. This was where he said that students spent 18 formative years living with their parents and at least 12 in the school system before they arrived at a university. So it was most unlikely that the three years at tertiary level were responsible for any personal or political deficiencies with which they emerged.

The press had, as a matter of course, been supplied with an advance copy of the speech. To the horror of the Lancashire Evening Post, who had already filed his story, when Charles came to the fighting talk his distaste for warfare woke up and he missed it out.

This led to a lengthy discussion of journalistic ethics. Was the LEP reporter obliged to call his office and cancel the story or could we charitably suppose that the omission of the best news material was an accident, and its inclusion in the press would still be welcome?

Well it’s not really relevant here but having got this far I can’t stop without telling you what happened: in the end the story was left as it was. The VC did not complain.

However, the important point for our purposes is that critics of student behaviour often grossly over-rate the influence in any direction of university education. This delusion has sometimes afflicted university administrators as well.

Some years before my retirement there was a campaign to persuade us all that every lesson should have “intended outcomes”. These in turn would slot into “intended outcomes” of the course, and those in turn would relate to the “intended outcomes” of the whole university.

This was never a success. The people actually concerned with delivering classes never believed in it. This disbelief was reinforced by the rule that all “outcomes” had to be measurable. So such important but unstatistical matters as wisdom and judgement were ruled out altogether.

Actually opportunities for radicalisation rarely come up. Attempts to provide “breadth” in education commonly involve taking a wider range of subjects, but these are still taught by people whose qualification is extremely specialised. In the vast majority of classes the merits of petrol bombs and teargas simply do not come up.

Indeed many of my colleagues were reluctant to engage in any interaction with students outside the subjects they were teaching, on the grounds that they had no qualification relevant to personal problems and did not wish to risk possible legal repercussions if they erred. The contrary view was that, after a conscientious plug for the professionals in the Counselling Service and the eager amateurs in the Chaplaincy, we should accept that students had a right to the sympathetic ear of their choice and if you were so honoured it was up to you to do your best.

Nobody was looking for a chance to explain the merits of dialectical materialism, or indeed of Jacksonian democracy.

So I felt a certain lack of enthusiasm for the news that students at my old stamping ground are now subjected to a compulsory two-hour lecture from some government stooge on the merits of the national security law. This featured no less than 200 Powerpoint slides, according to reports, which I would respectfully suggest is too many. There is also a multiple choice exam – the easiest kind to run, because it can be graded by a computer.

The idea that this is going to make any difference seems rather far-fetched, in the light of the failure of much more serious efforts to change student views.

I remember a brief row in student circles over a mainlander who ran for a student office at City U. This was in the days when student unions were still allowed. It then emerged that he had been a member of the Young Communists. The other members of his “team” dropped out, complaining that this should not have been concealed from the voters.

Some of my students turned up the next day in red scarfs. They explained that they were protesting at this discrimination, not because they were communists but because membership of the Young Communists was effectively compulsory if you were selected. They had all been in it. It should not be regarded as evidence of any political view.

In the 1940s a British government, concerned at the decline in religion, decreed that every schoolday should start with a “non-denominational act of worship”. This provision was faithfully observed at every school I attended. The decline in religion continued unabated.

Changing people’s minds is harder than it looks. It is quite easy, on the other hand, to produce an appearance of agreement by suppressing the expression of views you don’t agree with. This is, though, hardly compatible with the life of a university, which is based on the principle first enunciated by Pierre Bayle, that “everyone has the right to be mistaken and to hold ill-founded views.”

The characteristic of a university, if I may borrow a concept from Pirsig’s fascinating book on motorcycle maintenance, is that its purpose is the pursuit of truth and its method is the use of reason.

If the first of these is abandoned and the second disdained, then what you have left is a nice building and a lot of nice people. But, though it may look like a university, and talk like a university, it is no longer a university. And that is the destination towards which some people are urging us.

Why am I writing about the National Security Law again? I ask myself this question, and the answer seems to be that our leaders just cannot stop talking about it. For something which is only supposed to effect a very small number of people it gets a lot of mentions.

An interesting rift has now opened. On one side of it we have the Secretary for Justice, issuing a flood of op ed material to the effect that the NSL is clear and unambiguous, featuring crisp definitions of all the offences therein.

On the other side of the rift we have her senior colleagues, to whom the NSL seems to be a cross between the pronunciations of the Delphic Oracle and the Prophecies of Nostradamus: a conundrum wrapped in an enigma, full of exciting but mysterious possibilities.

Consider for example a recent speech by the Secretary for Security, Chris Tang. Mr Tang was apparently incensed that Ted Hui, a political exile in Australia, had posted a message urging his Hong Kong sympathisers to spoil their ballots in the upcoming Legco election, in protest at the new electoral arrangements.

Indeed Mr Tang went on at some length about the deficiencies of Mr Hui, accusing him of “despicable” behaviour and “asking people to go forward while staying backward yourself”.

Mr Tang also thinks it was “cowardly” of Mr Hui to stay abroad. Whether refraining from returning to Hong Kong to settle in for a few years of correctional M&Ms displays cowardice or common sense is a point we shall not explore here.

Mr Tang pointed out, quite correctly, that urging people to spoil their ballots or, indeed, not to vote was an offence, since an amendment to that effect was inserted in the relevant ordinance last May as part of the election revamp. So Mr Hui’s message would clearly be illegal here. Mr Tang rather implied that it was still illegal if perpetrated in Australia, which seems dubious. Hong Kong ordinances generally apply only in Hong Kong.

Perhaps that was why Mr Tang also felt the need to dive into the legal fogbank that is the NSL, which applies everywhere, and announce that asking people not to vote or to cast a blank ballot “may” violate the NSL.

This observation was no doubt delivered with such authority and confidence that only listeners who were paying close attention would have noticed that it was a declaration of ignorance.

When considering whether any action violates the NSL there are only two possibilities. Urging people not to vote may be either a violation of the NSL or not a violation of the NSL. Stating that it “may” be a violation tells us nothing one way or the other.

It seems that the offence is a sort of legal Schrodinger’s cat. It is locked in a box and we can’t tell whether it is alive or dead until we open the box. In the meantime it is potentially alive or dead, suspended between the two states.

The problem with this is that the rule of law is generally held to require that citizens may know what the law is without getting involved in the quantum mechanics of dead cats.

Unfortunately the new law on incitement not to vote seems a potential problem of a more conventional kind. The international Covenant on Human Rights, which according to the Basic Law still applies in Hong Kong, states that freedom of expression may be infringed to achieve certain important objectives.

The relevant one for present purposes is described as “public order (ordre publique)”. The French translation is added to indicate that “public order” is to be interpreted in the broad continental way rather than in the restrictive traditional English one which covers little more than the absence of street fighting.

I suppose this concept could be extended without too much difficulty to campaigning for spoiled ballots. A large number of spoiled ballots would disrupt the count and make it much more time-consuming. Each one has to be displayed to the agents of the candidates and the large crowd of other people attending the count, so that it can be shown and agreed that the ballot is spoiled, and not just an unconventional attempt to indicate support for a candidate.

This could not only lead to a lot of time wasted, but also to the display before the attending crowd, and through them to the public, whatever deplorable message the person spoiling his ballot has added instead of the traditional X. Large numbers of people watching on live streams might be subjected to subversive slogans like “Hong Kong add oil!” We can’t have that, obviously.

When it comes to urging people not to vote, on the other hand, the effect is quite the opposite. The smaller the number of votes to be counted the easier it is to run the election. The absent voter does not make extra work, convey an objectionable message or disrupt the proceedings in any way. This being the case I wonder if making advocacy of non-voting a crime is actually constitutional.

It will not have escaped the attention of readers that it would be embarrassing to the government if the turn-out in the Legco election is much lower than it was last time. This explains why Mr Tang and, in a later speech, his boss, have been all but begging voters to turn out and cast a ballot. Mr Tang urged enthusiasm; Mrs Lam called for voters to participate “actively”.

But causing embarrassment to the government is not a crime against the NSL, is it? Or is it? Is the cat alive or dead? Will someone open the box? Not me.

This question arose the other day when four unusually elderly people were arrested for what seems to have been a mini-protest in Mong Kok.

Police then announced that the foursome, who apparently displayed a banner calling for “real universal suffrage” had been arrested on suspicion of “seditious intention”.

Back to your books, boys. There is no such offence as “seditious intention”. There is a section called “seditious intention” in the Crimes Ordinance but it does not by itself create an offence of that name or any other. The offences come in the next section and as well as the intention require an act, speech or publication.

That is one for the legal pedants, perhaps. I note also that it was reportedly considered relevant that the four, ages ranging from 61 to 85, had with them a yellow umbrella and were wearing yellow clothes.

It is time we had some common sense with regard to coloured tee-shirts and other things. Our police force is not supposed to be run along the lines of the Millwall FC supporters who pounce on any visiting fan wearing the colours of the wrong team.

I have a yellow tee-shirt. I also have a blue tee-shirt, though I am not a blue ribbon enthusiast. I have a red tee-shirt though I am not a communist, I have an orange tee-shirt though I am not a protestant. I have a pink tee-shirt though I am not gay. Nothing wrong with being gay, of course, but one would not wish to feature in misunderstandings on this point. I also have a black tee-shirt and do not wish on that account to be accused of rioting, a sport for which I am much too old.

To return to our four geriatric suspects, we must not, I suppose, trespass in the area of their likely guilt or innocence, which will presumably depend on whether calling for universal suffrage now constitutes a notion so subversive of good order and discipline that anyone uttering it can be charged with trying to bring the government into “hatred and contempt”.

No doubt the usual expert on political slogans will be wheeled into court to advise the judges on this point. Or perhaps he won’t. The gentleman concerned is now in line for a Legco seat. As this worthy position is virtually in the gift of the government people may think it casts rather a shadow over the expert evidence he might give, and indeed that his political ambitions might usefully have been mentioned before his last performance.

But we must leave such matters to the courts. What seemed to me to be both legally commentable and worthy of interest was the little snippet at the end of this story, which told us that the matter had been passed to the “Mong Kok district’s anti-triad unit for investigation”.

Has it indeed? We can I think exclude the possibility that the anti-triad unit has some unique skills which make them a good fit for this case. I do not recall, among numerous examples of triad activity in Mong Kok, that the display of subversive banners, clothing or umbrellas came up.

Given that such examples are numerous though, and probably only the tip of an iceberg, you would have thought that the anti-triad squad was extremely busy, and so it would be the last unit to be considered if there is a shortage of manpower for political censorship.

There seem to be two possible explanations for this curious decision. One is that the level of triad activity in Mong Kok has now declined to such a low level that the anti-triad people have nothing to do. All the syndicates have been smashed, all the vice establishments closed, all the protection rackets terminated. Congratulations!

The other possible explanation, alas, is that triad activity in Mong Kok is much as it has always been, but the police regard this level as perfectly acceptable, and are consequently happy to divert the attention of the anti-triad squad to other matters.

Perhaps the truth is somewhere in between, and the anti-triad squad has not had much luck lately, so it is being given a run out against an easy target, rather as a goal-starved centre forward might be given a run in the reserves to get his scoring mojo back. 

I am sure the Mong Kok triads, if there are any left, will be shaking in their boots.

I am not a fan of the Independent Police Complaints Council. It s an incurably complacent body. Its latest report offers a truly mind-boggling example of the council’s ability to overlook the forest while looking closely at a tree.

The complaint concerns a man arrested by the police for alleged possession of drugs, and was made by his daughter.

Mr X – the IPCC report naturally does not give names – was detained in an unspecified police station and in pursuit of their inquiries the police confiscated his trousers. The drugs were allegedly found in his trouser pocket. Apparently the police guidelines require police to try to arrange replacement clothing in situations of this kind but the defendant was left to the tender mercies of the Station Sergeant working the case, who loaned him a pair of the sergeant’s own shorts.

A day later the daughter, later the complainant, turned up at the police station with a shirt, jacket and pair of jeans to be passed to her father. The PC behind the desk refused to accept the jeans and shirt, without giving an explanation, and accepted the jacket. But when her father turned up in court he was not wearing the jacket either.

He was then released on bail. Two days later he died of pneumonia.

The IPCC’s response to this is delightfully bureaucratic. The complaint about the PC refusing the clothing was “substantiated”, because the erring constable should have consulted the Case Officer about whether the suspect was allowed extra clothing. The IPCC also registered a count of “Substantiated other than Reported” against the Station Sergeant, because lending a trouser-less suspect a pair of your own shorts was “inappropriate”.

The IPCC noted without comment that the complainant “opined” that “her father’s death might have been caused by the Police’s failure to provide adequate clothing to her father during his detention”. This apparently, was not worth further investigation or indeed thought. One imagines that it was the meat of the complaint, in the complainant’s view. And it was ignored.

A word about the effects of low temperature. Technically pneumonia is not caused by low temperatures; it is a condition caused by a variety of microbes, viruses or fungi. On the other hand it is well established medically that exposure to low temperatures causes diminished effectiveness of the immune system and is particularly hard on the lungs so “The main causes of cold-related deaths are respiratory and cardio-vascular diseases” (says the Barcelona institute for Global Health) of which pneumonia is one.

Well how cold can a police cell be? Very cold, apparently. Mr Sam Bickett, who appeared in this space recently when he was convicted of obstructing a policeman who repeatedly denied he was a policeman, took to Twitter to relate his own experience, which was that the cell he was incarcerated in after his arrest was so cold that after what seems to have been at least 24 hours he turned a lurid colour and was taken to hospital.

In the meantime he was occasionally allowed out into a warm room and invited to confess without the presence of the lawyer and consular representative he had repeatedly requested.

In the hospital he met a doctor who “knew about the freezing room interrogation method for prisoners and said he ‘sees it often’” Note that this is not only a form of duress. The National Geographic, in a piece of advice for masochistic hikers, says that “hypothermic people easily become confused” and consequently “It’s particularly dangerous if you have to make a crucial decision in the cold.” So it appears that frozen detainees may be encouraged to take important and legally binding decisions in a condition where their reasoning is impaired. 

This ought to be worrying. The evidence may be a bit thin. Our complainant is anonymous and Mr Bickett is a convicted criminal, though he is optimistic about his prospects on appeal and so am I. The doctor’s evidence is hearsay.

On the other hand this is a very serious matter. We have been told on numerous occasions that various rights which we fondly believed to be protected by law were not in fact absolute, and could lawfully be infringed in the interests of some important conflicting objective, like national security.

When it comes to the right not to be tortured, though, the international law is refreshingly clear. It is an absolute right and there are no circumstances in which states are allowed to infringe it.

Unfortunately we come at this point to a sad feature of Hong Kong as currently run. If you suspect that the police are violating the rights of arrested people, who are you going to call?

The Complaints Against Police Office is a branch of the force, the IPCC is a pompous joke, the Secretary for Security is a cop, as is the Chief Secretary. And the Chief Executive, only last week, suggested that Legislative Councillors who had urged, two years ago, an independent inquiry into the policing of then current disturbances should apologise.

This seemed particularly unkind as she was addressing the surviving rump of the purged Legislative Council. Some of them complained that, as indeed one might have expected under the circumstances, they had called for an inquiry in the confident expectation that it would exonerate the police on all counts.

There was no inquiry. Police persons now complain bitterly that people are unsympathetic when a blameless one of their number is killed on duty, and that some people still believe lurid stories about what they got up to in 2019. Well Macchiavelli said that every prince must choose either to be loved or to be feared. Those who choose the latter should remember that the two choices are exclusive. You are not allowed both.

It seems that no venerable Hong Kong institution is safe now that the forces of obsequious pro-government enthusiasm have shed all pretence of tolerating opposition.

The latest in line to have its reputation shredded is Legal Aid. This is a service which has been operating for many years without serious complaint. It pays for the services of lawyers for people who cannot afford one themselves.

This is a potentially tricky area in that many of the people who seek legal aid are engaged in proceedings with the government on the other side. The most obvious example of this is criminal cases but there are others, like applications for judicial review.

Over the years the Legal Aid Department has done a good job of convincing most observers that it is sincerely neutral in considering the needs of applicants for its help, even though it is a part of the government, taxpayer-funded, etc. But that will not do these days.

Coming soon to a rubber stamp near you is a reform which will deprive Legal Aid recipients in criminal cases of the right to choose the lawyer who will represent them in court. Why would anyone want to do that? Well the cue is in the word “criminal”. Nobody is complaining about the choice of lawyers in civil cases.

Oddly enough defenders of the proposal have not felt it necessary to explain this. Poor Ronny Tong is expected, as usual, to defend any government policy with a whiff of law in it, and came up with some curious arguments.

“It is unheard of, or rare, to hear … complaints in years about the imposition of useless or incompetent lawyers on applicants,” he said. Could that be, one has to wonder, because applicants have had a choice, so lawyers, incompetent or otherwise, are not imposed?

He went on to say that some legal aid applicants tend to choose only a few barristers since the social unrest in 2019, which is not a “healthy” situation for the industry. “The legal aid system should distribute cases fairly, this is the most appropriate practice,” he said.

He also offered the stimulating thought that the new arrangement would allow lawyers who were not experienced in a particular kind of work to accept cases of a kind they were not used to, which would expand their skill sets or, as Mr Tong put it, “allow more of them to gain specialised litigation experience”.

Both of these arguments are entirely irrelevant. It is not the purpose of the Legal Aid system to enhance the “fairness” of the distribution of work among lawyers. In fact the distribution of work among lawyers is chronically uneven, something which is baked into the structure of the profession. There is no reason why Legal Aid applicants should be sacrificed to provide a sort of social security for inexperienced or less competent professionals.

Similarly it is not the function of the Legal Aid system to provide supplementary legal education for lawyers by providing them with a stream of captive clients who are no position to refuse the services of the inexperienced.

The purpose of the Legal Aid system is to ensure that indigent litigants and defendants are not at a disadvantage in court compared with antagonists who can afford their own lawyers. Rich people can choose their own lawyers so the “fair” thing to do, if fairness is really what we are after, would be to allow them to do the same.

Actually the Basic Law (Article 35) stipulates that defendants in criminal cases have the right to a lawyer of their choice. Mr Tong’s answer to this point is that you still have a choice between the lawyer offered by the government and one you pay for yourself. This does not work very well for poor people, for whom the second choice is imaginary.

The fact is that people make choices about who they consult, who they do business with and whom they employ for a variety of reasons. Some of them may not be very good, but freedom  to choose is like that. I remember the days when many chemists’ shops had two queues: one of men who did not wish to discuss their purchase with a lady assistant and one of ladies who did not wish to discuss their requirements with men. That now seems very dated. 

No doubt there is a tendency in legal matters for business to accrue to the experienced and willing, at the expense of the inexperienced and those merely waiting in the taxi rank. But the right to choose your lawyer is an important right. And this is particularly the case if your antagonist is the government, with its inexhaustible supply of money and manpower.

Mr Tong may be right in supposing that “60 per cent of barristers in Hong Kong handle criminal cases and they all have similar experience”, though that sounds a bit optimistic. But the individual defendant in a criminal case is not concerned with the statistics of the legal profession, he is concerned with whether the individual lawyer representing him is experienced, sympathetic and willing to take risks. Lawyers may be willing to ignore the threat of a torrent of abuse from the People’s poodle press if they beat off a much-wanted prosecution. But will the individual defendant feel confident of that happening in his case if his lawyer was chosen by a government department?

Or to put it another way, who, if they were accused of criticising the government, or subversion as we are supposed to call it these days, would wish to find that his legal team comprised Junius Ho instructing Ronny Tong? 

What is going on here has, as usual, nothing to do with fairness, the well-being of the legal profession or indeed the needs of indigent people in legal trouble. The proposals are a sop to the wing of the DAB which wishes Hong Kong not only to be a police state but a nasty police state. Their purpose is to increase the likelihood that anyone accused of a public order or national security offence will end up in prison, and reduce the income of human rights enthusiasts in the legal profession.

The nasty view is that it is objectionable that there should be an organisation dedicated to helping people accused of crimes, or an organisation dedicated to providing help and encouragement to those remanded in custody, or indeed organisations dedicated to helping those convicted with gifts, visits or letters. We have sorted that out. It is also objectionable that people who are accused of public order offences should be able to patronise a set of lawyers who, nasty people rightly suspect, are probably not warm admirers of the government in general or them in particular. 

So they will put a stop to that. Hong Kong is now effectively a one-party state. And not a very nice party either.

One of the complaints which lawyers routinely make about the national security law is that it is not clear enough about what is forbidden and what is not.  Eva Pils, a professor of Law at Kings College London, described the wording as “broad and malleable”, wondering if “mere criticism of the central party state [could] be treated as subversion or inciting subversion.” 

Eric Cheung, who teaches law at the University of Hong Kong, was quoted as saying that “It’s very broad. Basically, anything can amount to national security threats. No one will feel safe, even foreigners.” 

Tom Cheshire, Sky News’s Asia specialist, wrote ”Secession, subversion, terrorism and colluding with foreign forces now all carry a maximum sentence of life in prison. But they are drawn incredibly widely…”

The government response to this has usually come from the Secretary for Justice, Teresa Cheng Yeuk-wah, who has developed a little side-line in writing for publication. So in a letter to the Financial Times the “NSL expressly specifies the nature of each offence.” A later epistle to the Times said the law “clearly specifies the elements of each offence.”

A more elaborately legal version for Hong Kong Lawyer (the Law Society’s print offering for solicitors) had “The elements of each of the four offences in the NSL encompass the actus reus and mens rea and are clearly set out.”

Ms Cheng can perhaps be excused her fondness for Latin, which no doubt many lawyers share. The actus reus is the prohibited act and the mens reus (“criminal mind”) concerns the intentions of the perpetrator.

Unfortunately Ms Cheng does not provide any detailed examples. Non-lawyers may suspect that as Ms Cheng’s qualifications for her post included only a stellar career in commercial arbitration and bosom palship with the Chief Executive there may be other possible interpretations of the merits of the NSL as a piece of criminal legislation.

But as non-lawyers we can hardly assess this. One crude comparison is possible. Both the NSL and Hong Kong’s Crimes Ordinance have Sections (strictly speaking the NSL bit is a Part of an Article) dealing with sedition. This means that sensation seekers with time on their hands (I have retired) can engage in the entirely meaningless but interesting activity of comparing their length. Which is quite different.

The Crimes Ordinance version starts at Section 9, which is entirely devoted to defining a “seditious intention”. It has two sub-sections, containing six and four paragraphs respectively, and runs in total to 293 words. This is followed by Section 10, which details the offences, and has five subsections for a total of 310 words.

Section 11 is a quicky on proceedings, and runs to two subsections totalling 40 words. Section 12 is on evidence and is even shorter, at 18 words. Section 13 deals with search warrants and runs to 101 words. Section 14 deals with the powers of the police to remove subversive material and has three subsections sharing eight lettered paragraphs for a total of 155 words.

The structure of the NSL segment is naturally quite different. Article 22 has a preliminary paragraph (38 words) four numbered sub-articles describing the actual offences (124 words) and a concluding paragraph about sentencing (78 words) giving a total of 240 for that article. Article 23, which is about aiding, abetting, encouraging etc. adds another 105 words. And that’s it: a total of 345 words, nearly a tenth of which are consumed by the phrase “the body of power of the Hong Kong Special Administrative Region”, which occurs three times.

The NSL version, then, runs to just over a third of the length of the Crimes Ordinance sections. Even if you disregard the “power to remove” bit, which the NSL does not mention at all, the Ordinance version is still twice as long. It is difficult to believe that this level of abbreviation has been achieved without some loss of detail. 

Now of course brevity is not necessarily a bad thing. Sun Tsu’s “Art of War” barely fills a slim paperback, while Clausewitz’s “On War” came out in three hardback volumes. Both books are regarded as important landmarks. No doubt if the anonymous author of the Crimes Ordinance had known his work was going to be published only in hand-written Chinese characters on bamboo strips he would have tried for a more compact offering.

Having said which it does rather seem from the extreme disparity in the level of detail offered that the two sedition segments cater for radically different ideas of how legal proceedings work.

For the author of the Crimes Ordinance the function of defence counsel is, among other things, to question whether the conduct complained of actually contravenes the relevant law, and the function of the judge is, among other things, to decide whether that is the case or not. A good Ordinance leaves little wriggle room.

For the authors of the NSL, senior mainland apparatchiks, the function of the defence lawyer is to aid the accused in the drafting of his confession, and the function of the judge is to decide whether the resulting work is sufficiently mellifluous to justify a reduction in sentence. Statutes do not have to be argument-proof. They merely have to guide the defence in how to lose accurately, completely and solemnly, as the occasion requires.

No doubt Ms Cheng will continue to encourage the view that the NSL is detailed and specific. Readers of the Times may swallow this. I imagine local observers would be more impressed if she could persuade local supporters of the status quo that not every sign of opposition or discontent should be interpreted in terms of national security, particularly if that interpretation is questionable.

I notice, for example, that the NSL on sedition explicitly covers only actions by force, the threat of force, or other unlawful means. In other words if there is no force, no threat, and no breech of any other law then the NSL is not infringed. I take this to mean that there can be no legal requirement for the organisers of marathons to censor contestants’ shorts, tee-shirts or tattoos, however political. 

Indeed, the NSL also states (Article 4) that the rights and freedoms of Hong Kong citizens shall be protected. I do not believe it was the intention of the drafters to make it a criminal offence to have “Hong Kong add oil” on your running shorts.