tim's experiment

I don’t know what it is about the Food and Environmental Hygiene Department, but they seem to have trouble with the Chinese New Year. Last year we had a riot over street food. This year we have the curious case of the censored New Year Fair stalls. Every year there are fairs all over Hong Kong where flower growers sell the seasonal specialities. For a long time the flower part (unappetisingly labelled the “wet goods area” at my local) has been accompanied by other stalls selling all kinds of knickknacks, mostly balloons and toys of the kind people might be tempted to buy on impulse for their kids. In Victoria Park, the largest fair, there is also a political section, where parties and other groups sell items, usually of a satirical kind, to raise funds. One year there was a mini-scandal over, if I remember correctly, an order for toilet paper with CY”s face on it, which was cancelled at the last minute by the factory in Shenzhen which had contracted to perpetrate this sacrilege. But in the mainland you expect that sort of thing.
This year’s contribution to seasonal goodwill from the FEHD, which runs the fairs, was to cancel at the last minute two stalls which had been applied for and issued in the usual way, in the political category. The stalls were to be used by Youngspiration and the Hong Kong National Party, which connoisseurs of lost causes will recognise as the two parties explicitly advocating Hong Kong Independence.
The explanation provided by the department goes in part, “We believe the merchandise you will be selling is related to the pro-independence messages that Youngspiration/Hong Kong National Party propagates.” The department went on to say that the sale of such merchandise would “very likely endanger public order and public safety” as the fair would be packed and there would probably be people opposed to such messages.
The response of the two parties concerned offered an interesting contrast. The National people came out fighting, condemning political persecution, accusing the “Chinese-colonialist” government of cowardice, and promising to find other ways of selling subversive merchandise. The Youngspiration people, by contrast, sounded a bit bewildered. Apparently they were planning a sort of “bring and buy” sale for local artists, and had no idea what their merchandise would look like, or whether it would relate in any way to independence.
So what is going on here? Well we have two possibilities. One is that the FEHD’s stated reasons are a mere excuse, and this is a part of the continuing attempt by our government to use any and all means available to hamper and persecute anyone identified with independence, in obedience to instructions given in public by several senior Chinese officials. The real objection to the stalls is not that they are a threat to public order, but that they would raise funds for a cause which the government disapproves of. After all if motivated by a real concern about public order you would not deal with it in this way. You would go along to the stall when it was setting up and look to see if your worries were justified, and take the matter up with the stallholder if they were. Some years ago I remember a row about a clothing line in a local store which was held by some to be reminiscent of SS uniforms. I did not agree with this, but at least the people who did took the trouble to go to the shop and look at the stuff before they complained. So I fear the National Party people are probably right in thinking that they are now a target, the quarry in a hunt which all government departments are expected to join.
This is disturbing because the provision of public services should not be subjected to this sort of political test. Are conspicuous members of the National Party, or others the government disapproves of, going to find that they cannot rent a hall or a ping pong room, get a driving permit, a passport, a dog licence?
The alternative explanation is that the FEHD is being entirely truthful, and are really worried about public order. But this is equally disturbing. Advocating independence is not in itself illegal. It is controversial, but so are other things like holocaust denial, homophobia, opposition to abortion or calling for a reappraisal of the Tienanmen massacre. People have a right to express their views on controversial matters peacefully in public places. In recent years one of the threats to that right has been the appearance of small gangs of violent old men bent on suppressing the expression of views they disapprove of. A government which aspires to the rule of law should be opposing that sort of thing, not appeasing it. In any case public order is a matter for the police. There is no suggestion in the communication with the parties concerned that the FEHD consulted anyone else before deciding on its own distinctive contribution to public safety. This leaves one, I am afraid, rather doubtful about its own version, and leaning towards the explanation that the reasons offered were not the real reasons, and the FEHD believes – as so many people do these days – that misleading people in general is not lying, it’s public relations.
The paradoxical result of all this is a boost for the independence people. It is frustrating that our government apparently cannot get this point. The argument for independence is that we do not enjoy the high degree of autonomy which we were promised. This argument is dramatically reinforced every time the government is seen to be pandering to the prejudices and opinions of Chinese officials. No doubt losing their stalls will cost the independence advocates some money. But a prime piece of propaganda by deed is priceless. Another “own goal” for the away side.

So Carrie Lam is going to run for Chief Executive of the SAR. This does not come as a surprise. In fact it must be the most extensively pre-reported event since the death of Chairman Mao. It does, though, raise a number of questions.
The first one is, what are we to make of all those pundits who said that John Tsang was forced to keep his candidacy on hold until his resignation had been accepted by Beijing? This was a repeated trope in all the toad media and some of the others: until his resignation had been given the green light Mr Tsang could not announce his candidacy, recruit a team, pen a manifesto, etc. Personally I disagreed with this. I think once an official resigns he or she is free to be as political as wished. I am surprised, though, to find that Ms Lam apparently agrees with me. Handing in her resignation she announced straight away that it was for the purpose of running in the CE election. She proceeded to launch her campaign (before a private audience of fat cats – old habits die hard) and we were told who was leading it, and other details, while the “acceptance” was still awaited. Mr Tsang, on the other hand, is still hovering. So maybe the acceptance from Beijing wasn’t what was holding him back after all.
Next we come to one of those media “coincidences”, like the TVB Palace Museum programme. Ms Lam’s announcement was followed in suspiciously short order by a double page spread on her many merits in the SCMPost. This paroxism of sycophancy was headlined “Iron lady with a will of steel”. And this leads one to wonder what on earth the headline writer was thinking of. Surely we do not need the Chief Executive to be quite as ferrous as this. I know lady candidates have to overcome some prejudice that the “fairer sex” is not tough enough for the big decisions, but there are limits. Ms Lam is not running for the job of supervisor in the lampshade workshop of a death camp. Indeed in the light of the Palace Museum saga one might wish that Ms Lam’s steely will had enough flexibility in it to accommodate some public consultation before a much-needed performance venue is summarily replaced and the whole deal secretly reaches the stage where we are told it would “not be fair” to ask people if they actually wanted it.
Actually the attempt to portray Ms Lam as a sort of human halberd is misguided. Her problem is not that she is a woman but that she is a bureaucrat. Nothing wrong with that, in the right places. Here is the great theorist of bureaucracy, Max Weber: “Bureaucracy develops the more perfectly the more it is dehumanised, the more it succeeds in eliminating from official business love, hatred, and all personal, irrational and emotional elements which escape calculation”. Electoral politics is an entirely different matter. Jeremy Paxman, in his admirable “The Political Animal” notes that there is one piece of personal history found more often in successful politicians than in the rest of the population: the loss or absence at an early age of one or both parents. Deprived of the usual emotional satisfactions at home, they develop an enhanced ability to share themselves with outsiders. This is probably not something which can be taught. Bill Clinton has it; Hilary hasn’t. John Tsang seems to be at ease with people, Carrie Lam, I fear, does not. And no amount of supportive gush about her family or personal history is going to fix this. The Chief Secretary’s palace on the Peak is very nice, but living in it does not foster the common touch.
Another Carrie question concerns the voices in her head. Ms Lam said in her announcement that “God told her to run”. This is open to a number of objections, some of which are explored here: https://www.facebook.com/plugins/video.php?href=https%3A%2F%2Fwww.facebook.com%2F1648246202123798%2Fvideos%2F1823253341289749%2F&show_text=0&width=560
I am not sure who sent me that video, but thank you.
On the whole, although the upper reaches of our civil service contain a surprising number and variety of religions, we do not get this sort of stuff in Hong Kong. I think this is a good thing. I am not personally into religion, but neither would I categorically state with the enthusiasm deployed by eager atheists that the idea of God is entirely a figment of the human imagination. If there is someone there, though, I find it very hard to believe that He takes an interest in local elections. Which of course leads one to wonder who Ms Lam was actually talking to. Generally it seems God engages in conversation through some physical intermediary — His Son, an angel, a burning bush, a dove… Communications which occur entirely inside your head are more suspicious. I also note with regret that if God told Ms Lam to run in the election then his standards seem to be slipping. Surely a higher priority should have been given to more traditional advice about such matters as keeping your promises and telling the truth, which Ms Lam is perhaps in need of.

I hesitate to write this story because even now, though it happened to me, I can hardly believe it is true. Still it did happen. I am not making this up, OK?
The other day I found on my desk a cheque addressed to the bagpipe band in which I occasionally warble for weddings and other festivities. Because I am an owner-occupier unlikely to move, my home doubles as the band’s home address. Anything financial in nature I pass on to our Treasurer. But I had missed this particular item during her last visit, so in a moment of mild guilt I thought I would deposit the cheque myself.
Personally I have for many years been a customer of the bank with gay lions. But the band banks at the Hang Seng, so while I was in Shatin the other day I popped into the local branch to try my luck. I assumed that the automatic cheque eating machine would want a Hang Seng PIN, so that was out. I could also see no sign of the box provided in upmarket parts of the Gay Lions Bank, in which you simply drop the cheque with your name and number written on the back. My wife assures me that the Hang Seng does have such things, but if there is one in Shatin I missed it. So I surveyed the available queues, confident that the longest one would turn out to be the one I wanted, which it was. I did wonder why the “deposits and withdrawals” windows were so popular, as these things are easy to do with an ATM, but there it is. I joined a long queue of people fiddling with their mobile phones and 30 or so minutes later I was summoned to a window.
Here a friendly young lady took the cheque, copied down the account number from the screen of my phone, and started filling in other things. Then she got to work on the keyboard, and suddenly, a pause. It seemed that something had come up on the computer screen. My teller consulted the lady at the next till, who also looked at the screen. Then my lady took the cheque and the completed form, and disappeared behind the scenes. I was left feeling puzzled, and a bit conspicuous. The crowd of queuers behind me may have been distressed. One minute I looked like a quick customer. The next one of the four tellers devoted to our queue had disappeared. Very disappointing. What could be wrong? It would not be some problem with me personally, because my name had not yet come up. The band’s account is in order and the cheque came from a respectable local university.
After a long pause my bank person returned, accompanied by a small grey-haired man who I later theorised was the Manager (Procedural Pedantry). On mature reflection, though, I think he was the branch’s specialist in Breaking News Likely to Cause the Customer to Explode. He was very soothing. He apologised for keeping me waiting. But alas the bank could not accept this cheque for payment into an account. Why not? The name on the cheque, he said, was not the same as the name of the account holder in their records.
I was puzzled. The name on the cheque was “Hong Kong Saint Andrews Pipe Band”, which is our name, or so I supposed. But, the manager explained, in the version in the bank’s records the “Saint” was replaced by “St”. Goodness, I said, this is just the standard abbreviation for “Saint”, it is not a different name. Ah, said the manager, but there was another discrepancy. In the bank’s record it said “Andrew’s”. On the cheque it said “Andrews”. So the apostrophe was missing. And that, it seemed, was it. No apostrophe, no deposit.
I was so gobsmacked by this that it did not occurr to me to point out that the cheque had been written by a computer on a dot matrix printer so there may not have been an apostrophe available.
Well I suppose if your name has an apostrophe in it you may be comforted by the thought that the Hang Seng, at least, is careful about these things. “No no, Mr Jones, this cheque is not for you; it is for Mr Jone’s” As I do not have an apostrophe in my name I am just glad I picked the Gay Lions bank, where despite occasional resistance I have always managed to convince them that “Tim Hamlett” and “Timothy Hamlett” are the same person.

Some people are opposed to the Palace Museum project because they do not relish the thought of Carrie Lam as Chief Executive. Some are opposed to it, perhaps, out of habit. Some people may just not like museums. Some may be put off by the thought that the best contents of the old Imperial Palace were spirited away to Taipei 50 years ago, and the best of what is left is unlikely to leave Beijing.
I am not in any of those categories but I have to say that the project has a distinct smell about it. For those of you who have just come in, before Christmas the government announced that a Palace Museum, housed in a replica of part of the Forbidden City, would be built on part of the land reserved for the West Kowloon Cultural District. The construction will be funded not by the government, but by the Hong Kong Jockey Club, which runs our two horse casinos and a fleet of betting shops.
What bothers me is the chronology. Early in 2015 the internationally famous museum director who was steering the cultural district project resigned, and was replaced with a retired Hong Kong civil servant. In September of the same year Ms Lam visited Beijing and toured the Palace there, which is not a replica. The director thereof then asked her if she could arrange a venue in the Cultural District where selected objects from the palace museum might be displayed for the delectation of Hong Kong citizens.
Ms Lam, according to her account of the proceedings, saw this as an opportunity to “do something for Hong Kong”, and the possibility that Hong Kong might not be overwhelmed by the prospect of a branch museum does not seem to have crossed her mind. Also according to her account, she considered that she could not take the matter further with the Beijing museum until she had located a site and the money to pay for a building.
We must suppose that Ms Lam, who considers herself a “proactive official” put her mind to this as soon as she returned. And in fact in December 1915 the Jockey Club was first asked if it would cough up the large sum of money which the project would require. This does not come as a great surprise because the Legco Finance Committee was being rather difficult at the time.
Saying that “the Jockey Club was requested” is a polite way of putting it. Actually disbursements from the Jockey Club Charities Fund are decided by a joint committee on which the government is represented. This is a useful arrangement for both sides. It allows the government to save money by having someone else pay for clinics, schools and such like which it would otherwise have to pay for. It allows the Jockey Club to plaster its logo over said clinics, schools etc., thereby distracting the casual observer from the sordid nature of the club’s main source of income. So there is give and take. It would be astonishing if a suggestion strongly supported by the Chief Secretary were refused.
Eddie Chu Hoi-dick, alias the King of Votes, was unkind enough to point out in Legco that while the Jockey Club was, at least in theory, pondering its response to the funding request, the club was fortunate enough to secure an extension on a racecourse lease and permission to hold more race days than before. Mr Chu has an admirable nose for research. He also noted that the Jockey Club’s Executive Director collected a Gold Bauhinia Star last year. No doubt these happy events had nothing to do with the final decision, officially made last October, that the Jockey Club would pay for the museum.
Certainly Ms Lam seems to have been confident, because having got the money lined up she proceeded to tackle the problem of a site. The planning of the Cultural District had been going on a long time and there were of course no large spaces left vacant. Happily, though, the flying finger of fate came to the rescue, because in July 2016 the West Kowloon Cultural District Authority, chairman Carrie Lam, announced that it was abandoning plans to build a mega performance venue in the district, leaving an empty space. Is the Carrie Lam who is chairman of the Cultural District Authority also the Carrie Lam who is Chief Secretary, and who we left a few sentences ago looking for an empty museum-sized space in the cultural district, you are wondering? Yes she is. Indeed the one and only Carrie Lam turned up in person to perform at the press conference announcing the cancellation.
At this point the smell becomes a problem. Ms Lam said, and I quote from a boring newspaper which usually supports the government, “Any plans on how to replace the mega performance venue and exhibition centre would be decided by the WKCDA and its committees.” This was no doubt an accurate summary of the constitutional position, but hardly of the practical one. It led reporters and their readers to believe, as Ms Lam should have known and presumably intended, that the cancellation of the mega performance venue had been entirely due to problems with the venue idea itself, and that the resultant vacant space would now be the subject of fresh cogitation on what might occupy it instead.
But this was not the case at all. At this point Ms Lam was six months into her negotiations with the Jockey Club over money. An architect had already been engaged – apparently on the strength of his experience of museum work – and had advised on the potential use of the site. In other words the Palace Museum was virtually a done deal. Only if the Authority chose to defy the evident wishes of its chairman or the Jockey Club suffered a late attack of political timidity would the museum be in any danger. To give the public the impression that the site was now in a state of pristine virginity, waiting for some good idea to come along and seduce it, was grossly misleading. It was for all practical purposes already spoken for.
I do not know what the public reaction would have been if the press conference in July had been told that the planned mega performance venue would be replaced by a replica palace. Perhaps it would not have gone down too well. If people had been told that the replica palace would be paid for by the Jockey Club they might well have wondered whether the Jockey Club would have been equally willing, if asked, to pay for the performance venue. The official version is that the cancellation of the old plan was nothing to do with the upcoming museum one. This is difficult to believe. Did Ms Lam tell her fellow members of the authority, one wonders, that seven months before this matter appeared on their agenda she had been asked by a Beijing bigwig to find space in the cultural district for a museum?
Clearly Ms Lam would be a worthy successor to C.Y. Leung in at least one respect: her public pronouncements need to be taken with a pinch of salt.

To the Kai Tak Community Centre on Christmas Day for a spot of dancing. The Kai Tak Community Centre is an odd place, because while there is certainly a centre there is no sign of the community which it might be supposed to serve. Suppose you are driving down Prince Edward Road East between the former Airport Hotel and the place where the Kai Tak Airport terminal used to be. A bit further on the road – which is six to eight lanes wide at this point, separates, on the left, an old piece of North Kowloon from, on the right, a desert which used to be part of the old airport. The exception to the desert is a large bureaucratic building called the Trade and Industry Tower. I presume this is the home of the department of the same name. We may not have industry any more but industry is still doing its bit as a source of gainful employment for civil servants. According to the 1880 Civil Service Commission Britain at the time ran the largest empire the world had ever seen and its own affairs with some 3,000 civil servants. The Trade and Industry Tower looks as if it could accommodate all of them. The Kai Tak Community Centre is built into the bottom of the Trade and Industry Tower. You can stand on the centre’s roof (this is perfectly legal – it’s a sort of sitting out area) and look around. Behind you is the road. Next to you is the tower. Everything else is the desert which was formerly occupied by some of the less exciting parts of the old airport.
Now some history. A master plan for a replacement airport was first produced in 1983. It was shelved, but revived in 1989, when the Governor announced that the replacement would definitely be in Chek Lap Kok. That means that 27 years ago the relevant government departments knew, or should have known, that at about 1997 (the project suffered the usual delays so it turned out to be 1998) a huge swathe of land, formerly occupied by the airport, would become available for other purposes. Yet only now – there was an auction the other week – are segments of this huge resource being auctioned off to mainland developers for pleasantly absurd prices. People who were in kindergarten when the lands people knew, or should have known, exactly when the old airport was to close, are now finishing their PhD theses and it has taken our civil service that long to solve a problem of which they had ten years notice.
This is not an isolated example. In 1986 a company was given the right to run the Eastern Harbour Tunnel for 30 years. The 30 years expired in the year just finished and the tunnel reverted to government control and ownership. Naturally a number of suggestions were made for revising the toll arrangements, with a view to redistributing some of the traffic which clogs the oldest tunnel. Our transport wizards then turned around and said that the government had decided to commission a consultancy study of the matter. This will take two years. So inured have we become to this sort of thing that nobody asked why, if a consultancy study lasting two years was needed, it could not have been ordered two years before the matter came up. Something which has been – one hopes – in the relevant diaries for three decades should not come as a surprise. But it does.
This makes a dramatic contrast with the speed that our leaders can display when they want to. While the tunnel consultants are still pondering, for example, work will begin on the Palace Replica Museum, which was apparently only first thought of a month or two ago. The Palace replica, a sort of Disney castle for history buffs, will be finished before the last bits of the Kai Tak Airport site have been disposed of. Possible hold-ups in the Finance Committee have been avoided by persuading the Jockey Club to cough up.
This is an interesting innovation. I have always been a bit underwhelmed by the Jockey Club’s charitable activities. If given a monopoly, enforced by the police, of an addictive vice I would give generously to charities too. But at least the club did traditionally give to real charities which were helping the needy. Earlier this year it was announced that the club would be contributing to the construction of a local branch of the University of Chicago Booth School of Business. In this palace of learning the University will do what Schools of Business do, which is to hawk MBAs and other professional programmes to the great profit of the university and the students who take them. There is nothing charitable about “business education”. It is something which comparatively rich people get involved in to get richer. Now the Jockey Club is proposing to put its hooves in the Replica Palace project, which to many eyes looks less like a public facility than a festering heap of nationalist propaganda. I wonder if the club has considered the PR drawbacks of being seen as the organisation to which the government turns when it wishes to launch a dubious project without undergoing the scrutiny of the legislature. Neigh.

I have complained about this before. I fear I shall probably find myself complaining about it again in future. But it is an interesting question: where did the idea come from that if a Hong Kong official resigns, his resignation does not take effect until it has been “approved” in Beijing? I suppose we owe this gratuitous grovel to the early years of the Tung administration, but there is no justification for it at all. Officials of the Hong Kong Government are employed by us. The Hong Kong Government in some form is the name on the contract, their conditions of service are fixed by the Hong Kong government and their wages are paid from our taxes. They are in all respects Hong Kong employees, subject to Hong Kong labour law and contracts interpreted under Hong Kong legal principles.
There is one oddity about a few of the most senior officials, and that is that their appointment must be approved by Beijing. Whatever you think of this arrangement, its terms are quite clear. There is nothing in the Basic Law, or anywhere else, to suggest that Beijing’s approval is needed for other features of their employment. Beijing does not approve their salaries, their housing benefits, their personal toilets or their international junkets. There is no suggestion, either, that they cannot be dismissed without the Central government’s approval. So why on earth is permission required if they wish to dismiss themselves?
The situation is a little confused by a quaint convention found in some western countries, under which a politician who has suffered some painful embarrassment, like being caught deceiving the public or losing a spectacular libel case, offers his or her resignation in the hope that it will be refused. Sometimes this hope is realised. In these cases the person resigning does not really want to lose his job – he is offering to jump before he is pushed. However there is no place for this in Hong Kong, where politicians are immune to shame and embarrassment. Somebody who resigns really wants to quit his job. The idea that if you sincerely wish to resign your boss can refuse to allow you to do so is baseless. You are not a slave. I infer that it must also be erroneous to suppose that someone else has a right to veto your resignation and insist that you stay in the job.
The person currently awaiting “approval” is Mr John Tsang. There is no questioning the sincerity of his resignation – he wants to run for Chief Executive. Accordingly he has lost one essential qualification for his job – the desire to do it. What is the point of pretending that his resignation might in some circumstances be “disapproved”? You can’t chain him to his desk. Is some secret policeman going to be smuggled into the Central Government Offices for a short indoctrination session? “We have ways of making you write the next budget speech…”
Mr Tsang’s wait for approval has led to some bizarre journalism. It is only human to want to see patterns in events. The poet Rimbaud saw palaces in the clouds; ancient astronomers saw animals, fish and virgins in the night sky. Contemplating events in secretive places like Beijing the spectators are tempted to find meanings in trifles. Every hug or handshake is milked for political significance. So we have the question of how long it takes for a resignation to be “accepted”. Apparently in past cases this has ranged from a couple of days to nearly three months. The most plausible and boring explanation for this would be that resignations are passed to a committee which only meets once a quarter. How long you have to wait depends on when the next meeting is. But you could hardly write a column on that basis. So we are fed the entertaining notion that Beijing officials are desperately trying to hit a happy mean between approving too quickly, which would look like an endorsement of Mr Tsang’s election aspirations, or approving too late, which would look like an endorsement of someone else’s.
Meantime, we are told, Mr Tsang is handicapped because he cannot rent offices, recruit helpers, or canvass support among the electors. I can’t see why not. I presume he is no longer doing the job of Financial Secretary, as a replacement has been announced. I hope he has paid three month’s wages in lieu of notice, as anyone else who resigned from a senior office with immediate effect would have to do. He is to all intents and purposes an ex-Financial Secretary. It might appeal to some autonomous-minded voters if he started behaving like one right away.

What has got into our beloved Lord Patten? He seems to be annoying almost everyone. The pro-Beijing people are angry because he said nice things about democracy. The independence enthusiasts are angry because he did not say nice things about independence. The democracy seekers are not too happy either. Lord Patten’s remark that self-determination is equivalent to independence not only echoes the Beijing camp’s line, an unfortunate coincidence, but also has unhelpful implications for those who merely want an autonomous democratic region. Saying that self-determination and independence are undistinguishable only makes sense if you believe that given the choice, most people will want independence. But in that case, from the point of view of our imperial masters, democracy is just as bad. Why allow a bunch of malcontents, who really want independence, to rule themselves in minor matters? Some writers have been quite unkind about Lord Patten. Only the purveyors of egg tarts have no complaints.
You have to wonder why he bothers. Other former governors and chief executives keep a low profile. Lord Wilson appears occasionally in his capacity of Chancellor of Aberdeen University at social events for graduates of that august institution. As a result he is the only ex-Governor I have every danced with. Mr Tung Chee-hwa has floated a think tank. But other people do the talking for it. Donald Tsang is … busy.
So there is a Patten problem. Before we explore this let me declare a non-interest. Chris Patten and I attended the same university at the same time and studied the same subject. As far as I know we never met. It was a large university. While he was the Governor of Hong Kong we never met either. We were on a couple of occasions in the same room, for the presentation of the Hong Kong News Awards. It was a very large room. Mr Patten, as he then was, had the refreshing habit of fraternizing with real reporters, rather than following the example of predecessors whose encounters with the media consisted of formal dinners with proprietors and chief editors. But I was not one of the fraternizees, which was OK by me. It is possible, if you are a pure reporter, to have sources who are friends and friends who are sources. If you are writing comments, though, this does not work. Sooner or later you arrive at “how could you write that about me?” We belong in the press box, not the boardroom. Having been quite critical of his predecessors I felt a certain obligation to be quite critical of Mr Patten. But in the big things he did pretty much what I thought was as much as you could hope for under the circumstances.
Those circumstances were that, however much Lord Patten’s affection for Hong Kong or dedication to the interests of its people, his appointment was as the local representative of the British government. And this imposed some limits. In particular the condition of British politics imposed one over-riding constraint on the disposal of Hong Kong. Nobody could say exactly what success would look like. But they knew what failure would look like: several million Hong Kongers turning up at Heathrow carrying passports giving them the right of abode in Britain. This was not because there was any great hostility to Hong Kongers, or to Chinese people, who were unthreateningly dispersed by their penchant for the restaurant business. But “Asian immigration” had been given a bad name by an influx of Pakistani peasants whose integration presented, and indeed still presents, difficulties. A large increase would sink any government which presided over it. So Britain’s fundamental Hong Kong policy was that, whatever happened, Hong Kong people should stay where they were. Even the modest scheme for giving selected Hong Kongers full UK passports was explicitly and repeatedly justified as being intended to encourage the holders of such passports to stay in Hong Kong, not to move to Britain. Indeed even those idealists who advocated a generous distribution of passports argued that few of the resulting new Brits would be likely to move to the soggy island from which their travel documents came.
This presented a new problem for British colonial policy. All previous colonies had been handed over to their own inhabitants. Last governors took a pride in their adroit reconciliation of local forces to British ideas of democracy and the rule of law. One of the professional last Governors actually called his biography “A start in freedom.” As the years went by it did not go unnoticed that the freshly installed democratic institutions did not always last very long. A certain cynicism crept in, some of which surfaced in parliamentary debates about the future of Hong Kong. Still, there was no precedent for handing five million people over to a Communist dictator. The answer to this problem was the Joint Declaration, which made rather generous promises about the degree of autonomy and democracy to be enjoyed in post-handover Hong Kong. The two governments involved discovered a shared interest. Britain did not want the population to leave because many of them would have wound up in London. Beijing did not want the population to leave because an empty Hong Kong would have been less valuable than a populated one. So there was a joint effort, not entirely successful, to convince hapless Hong Kongers that the future would be even better than the past, and that the murderous regime from which many of them had fled at great personal cost was now a reformed character. No doubt the negotiators involved on both sides managed to convince themselves, as well as each other, that this was in our best interests.
This was the diplomatic framework within which the last Governor had to work. As an honest man, and a democrat, Patten did his best to make it as difficult as possible for the Chinese government to go back on its word. It was not in his power to make it impossible. In order to like and respect the person he saw in the mirror every morning Patten had to believe that there was a chance, if everyone concerned played their cards right, that Hong Kong people would succeed in plucking the flower democracy from the dungheap of Stalinist despotism. unlikely though that might be. Lord Patten’s continued interest is quite understandable if you see it in this light. If things go one way, he will be seen as a modern Moses who led his children to within sight of the land of milk, honey and autonomy. If things go another way he will be seen as a contemporary version of the death camp guard who announces to the inmates, as they strip for the last time, “leave your clothes here and we will go to the next room for a nice warm shower.”
His Lordship has a stake in our struggle, and this no doubt explains his eagerness to offer unsolicited advice. Goethe wrote that “The noble soul can accomplish all/If it is wise and swift.” Lord Patten no doubt wishes to augment the supplies of wisdom and swiftness. The trouble is he has been away for nearly 20 years. Since he left we have seen the passage of many moons, and a few booksellers. The idea that there is a “democracy debate” with a regime whose local minions want people with inconvenient opinions to be “hunted down like rats” is stretching things a bit. The other day a former radio host was convicted on seven counts of trying to rig the 2015 District Council elections by bribing people to run as bogus localists. He was offering sums totalling $800,000 for this service. Where did that cash come from? Look at it another way. In my constituency we had one candidate disqualified before the poll (petition pending) one disqualified after the oath taking (possible appeal pending) and one now the subject of a government application for disqualification (hearing next week?). All these efforts were made to fix the elections to a hopelessly rigged legislature. Every day we see something more like democracy with mainland characteristics. Hong Kong is pioneering a new sort of democracy: democracy designed by people who wish it to be as undemocratic as possible.
Lord Patten now expresses confidence that Hong Kong will see democracy in 2047. This sort of prediction is dangerous. No doubt he believes this to be true, just as Neville Chamberlain believed in 1938 that he had secured “peace in our time”, President Coolidge believed in 1928 that the prospects for the US economy “have never been better”, and William Pitt believed in 1792 that ”from the situation of Europe we might … expect 15 years of peace.” Political prophesy is not an exact science, especially when an earnest desire for one particular outcome clouds the view. We over-estimate the predictability of history. It does not flow, it lurches, as Taleb puts it.
Lord Patten’s good wishes are sincere and his advice well-intentioned. But Goethe also wrote that “None are more hopelessly enslaved than those who falsely believe they are free.”

There was an interesting scene in the Court of Appeal last week. Interesting scenes are not something one associates with the Court of Appeal, where the proceedings routinely feature a lawyer or two addressing three somnolent judges, who rarely say anything in response. I have visited occasionally to provide company for a lonely appellant. Usually it is a yawn.
Chatting with the lawyers during the breaks for a cough and a drag, or whatever judges get up to at half-time, one gets the impression that the judges, who have already read the documents in the case, do not take much interest in the oral part of the proceedings. Not this time, it seems.
The case was the appeal by two lawmakers, or non-lawmakers depending on your point of view, against their summary disqualification for frisky variations on the Legco oath.
Swimming manfully upstream on behalf of Sixtus Leung, one of the two, was Senior Counsel Hectar Pun. Mr Pun was arguing that the interpretation provided in mid-case by the Standing Committee of the NPC was not relevant. At this point the Chief Judge of the Court of Appeal (I assume this gentleman corresponds to the Master of the Rolls in the English system) Andrew Cheung intervened. I quote the Standard: “Cheung questioned on what grounds he could say the interpretation was an amendment, since the mainland used civil law system, while Pun and the justices were working under common law. Cheung said Pun was ‘patronising and presumptious’ by characterizing the interpretation as an amendment without understanding civil law.“
Cheung went on to ask Pun further questions about the interpretation, and then moved on to senior counsel Philip Dykes with the same question. Mr Dykes, representing Yau Wai-ching, refused to answer on the grounds that in his view also the interpretation was irrelevant.
Never mind the technicalities, feel the rhetoric. Patronising and presumptious? By the sleepy standards of courtroom chat this is fighting talk. Judges generally do not provide this sort of commentary on the matters put before them, for good reasons. An intervention on such a scale suggests to the layman, who is not aware of the extraordinary control that judges exercise over their own mental processes, that the judge is approaching the matter before him with something less than a completely open mind.
What I find particularly objectionable about this little debate is the gross unfairness displayed to civil law systems, a perfectly respectable category in which China’s should not be included.
A little history is needed here. Legal systems generally come in two categories. Common Law systems are descended from the English system and are found in former British colonies, and the former colonies of former British colonies. While the English system was developing in England, continental legal systems were much more influenced by the church, which interpreted for contemporary purposes the civil law. “Civil” in this case does not mean being polite, it means ‘of the city’, the city in this case being ancient Rome.
Actually we do not know an enormous amount about law in ancient Rome, the origins of civil law lying in practice in the Code of Justinian, and subsequent updates by his successors. Justinian, who flourished in the 6th century, styled himself the Roman Emperor but did not rule in Rome, which had already been over-run by barbarians. He ruled in Constantinople, now Istanbul. He married a lady of ill repute, one Theodora, much younger than he was, whose sexual habits were so exciting that in Gibbon’s “Decline and Fall of the Roman Empire” he left the details, which involved male slaves and geese, in the original Latin language. This seems an unlikely background for a lawmaker but no doubt the real work was deputed to a committee and the Emperor just put his name on it, rather as King James I did with the Bible.
Anyway this provides the background for most of the legal systems in Europe, and for those countries which used to be colonies of countries in Europe. Which doesn’t leave many for the “uncategorized because uncolonised” category, but it does leave some, notably Japan and China.
I realize that there is a temptation for loose thinkers to use Civil Law as a sort of catch-all concept, for everything which is not Common Law. Most Civil Law countries have a code, and do not feature the Common Law precedent system, in which the law grows by accretion, like a coral reef, as judges’ decisions are added.
If on the other hand we stick to the original meaning, of systems based on the Roman tradition, then China clearly does not qualify. The legal system, such as it is, is entirely local in origin. The Emperor Justinian has had nothing to do with it. In 1949, moreover, the slate was wiped clean. So clean that there has been much discussion since as to when, or even whether, China started having a legal system again.
There is an old legal joke which goes “In England you are presumed innocent until proven guilty. In France you are presumed guilty until proven innocent. In China you are presumed guilty until you confess. And then you’re really guilty.” The point which this encapsulates is that China’s legal system is in a class of its own. Indeed it may be more helpful to consider it as not a legal system at all, although that may be too confrontational a stance for Hong Kong judges hobnobbing with their mainland counterparts.
After all the legal system in China does not do any of the things you expect a legal system to do. It does not provide a fair and rational way of resolving disputes, it does not protect the weak or restrain the powerful, it does not provide a means of redress against government abuses. It is entirely at the service of the Communist Party.
We have had a taste of law with mainland characteristics with the oaths row. First we were told by the head of the Liaison Office what the outcome was going to be. Then the law was used, with a quick change along the way in case it was not up to the task, to produce the desired effect. This is how it goes north of the boundary: first the political decision, then the “legal” process to put it into effect. Calling this a civil law system is a bit … well, uncivil. The Emperor Justinian must be revolving in his grave like a propeller shaft.

The law’s delay is one of the “whips and scorns of time” identified by Hamlet (no relation) in the immortal soliloquy which starts “to be or not to be”. Lawyers frequently quote the maxim “justice delayed is justice denied”, which oddly enough does not come from a judge; it comes from the 19th century prime minister William Gladstone. Lawyers cringe at the memory of the Lord Chancellor who started a summing up with the phrase “Having been worried about this will for ten years…”
So we all agree. Doing it slowly is a Bad Thing. Less obviously doing it in a tearing hurry is a Bad Thing as well. It is a recipe for mistakes. This brings me to Thomas Au J’s decision in the oath-taking case, which illustrates the point rather well. We are enjoined on the highest authority (the late Lord Denning) to be kind in comments on judges, because they cannot reply. More, the judge can only adjudicate on the matters put before him. If the parties to the hearing have only very little notice, as they did in this case, then there is limited time for research or thought. Arguments which could have been put may not be. Still, Mr Au’s decision offers compelling evidence for the view that university law departments these days are not offering enough courses on legal history.
It seems that one of the points put to Mr Au, as I thought it would be, was that the courts have traditionally not had jurisdiction over the internal workings of the legislature. This was ascribed, wrongly in my opinion, to parliamentary sovereignty. Mr Au countered it with the equally erroneous assertion that Legco was not sovereign in our constitution, but the Basic Law was. Therefore it was appropriate for the courts to intervene if Legco violated said law.
This is nonsense on several levels. Let us clear up first of all who is now sovereign. Sovereignty cannot reside in a law. It resides in a person or institution. Sovereignty consists of the right to make laws and decisions. It may be shared or limited. Clearly in Hong Kong at the moment sovereignty resides in the Standing Committee of the National People’s Congress, which approves senior appointments, controls the armed forces, and can — through “interpretations” — change the law. One country, two systems is a promise that this sovereignty will be limited to certain matters, and exclude others which in the Basic Law are stated to be for Hong Kong institutions to decide “on their own”. But like other sovereign institutions the Standing Committee has one limitation on its power: it cannot bind its successors. So if a promise made in 1996 is broken in 2016 there is nothing we can do about it. This is not a comfortable position. But if judges are going to describe it they should describe it accurately.
Now we come to the question of parliamentary sovereignty. Nowadays this means the sovereignty of an elected legislature. But the idea that the courts should not intervene in the internal matters of the legislature goes back to long before anyone thought of an elected legislature in those terms. It makes its first formal appearance in the Bill of Rights of 1689 as “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court.” By the time Blackstone wrote his Commentaries on the Laws of England in the 1760s this was a commonplace: “whatever matter arises concerning either House of Parliament ought to be examined, discussed and adjudged in that House to which it relates, and not elsewhere.” This was not an expression of parliamentary sovereignty because when people talked of parliament and sovereignty they did not just mean the House of Commons, or indeed the House of Commons and the House of Lords. The sovereign was the King. As late as 1885 the great constitutional historian Dicey wrote that “Parliament means, in the mouth of a lawyer (though the word has often a different sense in conversation) The King, the House of Lords, and the House of Commons: these three bodies acting together may be aptly described as the ‘King in Parliament’, and constitute Parliament.”
The purpose of excluding the jurisdiction of the courts from the House of Commons was not to express sovereignty, but to limit it. The system in the 18th century was that the King was sovereign, subject to limits and the rights of the Houses to represent the lords and commons. To preserve this system it was necessary to exclude the jurisdiction of the courts, because they were the King’s courts. The arrangement was not intended to buttress sovereignty, but to protect the rights of MPs to propose and debate in despite of the sovereign’s disapproval. In other words it was intended to prevent precisely the sort of purge which Au J’s judgement on the oaths case has facilitated and encouraged.
A third point of contention is Au’s conclusion that since the legislature is subordinate to the Basic Law it is appropriate and proper for the courts to adjudicate where the Basic Law is alleged to be infringed. This does not follow legally at all. The law has always been binding on both the Houses of Parliament. That does not mean the courts had jurisdiction if it was apparently broken. The leading case on this is Bradlaugh v Gossett which (by an interesting coincidence) also concerns the taking of an oath. The then Chief Justice, Lord Coleridge, summed up the law as follows: “If injustice has been done, it is an injustice for which the courts of law offer no remedy… The history of England, and the resolutions of the House of Commons itself, show that now and then injustice has been done by the House to individual members of it. But remedy, if remedy it be, lies not in actions in the courts of law … but by an appeal to the constituencies whom the House of Commons represents.” One of the Chief Justice’s colleagues, one James Fitzjames Stephen (I am not making this up) put it another way: “In my opinion the House stands … in precisely the same relation as we the judges of this court stand in to the laws which regulate the rights of which we are the guardians, and to the judgements which apply them to particular cases; that is to say they are bound by the most solemn obligations which can bind men to any course of conduct whatsoever, to guide their conduct by the law as they understand it. If they misunderstand it, or willfully disregard it, they resemble mistaken or unjust judges; but in either case there is in my judgement no appeal from their decision. The law of the land gives no such appeal; no precedent has been or can ever be produced in which any court has ever interfered with the internal affairs of either house of parliament…”
In local terms this means that the Basic Law is binding on Legco, but that does not mean judges have the right to decide whether it has been breached or not. The Legco chairman is obliged to follow Article 104 as interpreted. But the courts have no right to nudge his elbow. This should not be a difficult concept in the Hong Kong context, because the Chinese constitution works the same way: everyone is supposed to obey it, but if they don’t, the courts have no power to enforce it.
All this may seem rather ethereal. And no doubt some Hong Kong people would be quite happy to see freedom of speech in the council chamber curtailed. Judges, though, may also care to consider the practicalities. Mr Justice Au’s decision has opened a Pandora’s box from which a small herd of legal gremlins is already emerging. Some people would like judges to adjudicate on the sincerity of oaths by other pan-democrats. Since the latest “interpretation” stipulates accuracy as well as sincerity, the way is also open for people of a pan-democratic persuasion to query the oaths of government loyalists, like the lady who swore in Putonghua and apparently mixed up her tones (a mishap with which all foreign learners of Cantonese will sympathise) and swore allegiance to a vegetable. Even Mr C. Y. Leung is now queriable, because in his coronation oath he missed out “Hong Kong”, a rather important inaccuracy because Mr Leung’s loyalty to the territory is often doubted. Further excitement lies ahead over the question whether the Legco chairman’s last-minute renunciation of his British citizenship was enough to qualify him for the job. As this gets underway we can look forward to queries whether oaths were validly taken if they were presided over by an ineligible chairman, and whether resolutions were validly passed if they were voted through by lawmakers subsequently disqualified for oath errors, or indeed if they were passed in the absence of lawmakers whose disqualifications were subsequently overturned. This could run and run. If it transpires, though, that localists or independence advocates are disqualified en masse, and everyone else is waved through, then I fear the man on the Shaukeiwan tram is going to conclude that our judges have become Party poodles.

Footnote for visiting legal eagles: Bradlaugh v Gossett can be found at 1884, xii, QBD, 271. Also relevant Stockdale v Hansard [A & E, ix, 107] and Burdett v Abbott [14 East 131]. Alternatively, excerpts from all three judgements in Costin and Watson, The Law and Working of the Constitution: Documents 1660-1914, Volume II.

I do not usually write about American politics. This is partly because I think it is really nothing to do with me, and partly because I am a bit wary of opinions, even my opinions, based only on media reports. Still, there are some debts which have to be paid. So I would like to express my gratitude to the American electorate for choosing Mr Donald Trump as their next president.
I suppose that this interesting choice had other purposes, but it has saved me a great deal of embarrassment. For weeks I have been fielding questions, often from Americans, along the lines of “How could Brits have been stupid enough to vote for Brexit?” Well I imagine this question will now fall out of style. Because voting for Brexit may have been stupid, but voting for Mr Trump was crazy. I have occasionally seen Mr Trump’s television show, “The Apprentice”. As a game show judge Mr Trump makes Simon Cowell look like St Francis of Assisi. As well as being obnoxious to the vulnerable, he has other qualities, it seems. He is stupid, bigoted, dishonest, lecherous, has no relevant experience and is almost as old as I am.
I feel for the writers of future guides to etiquette, who will have to confront questions like how, as a well-brought-up young lady, do you politely tell the President of the United States to take his hand off your pussy?
Well we mustn’t wallow. Indeed I fear I may already have given grave offence. I would like to thank the reader who sent me a quotation from one of the Americans I most admire, H.L. Mencken, which goes like this: “As democracy is perfected, the office of president represents, more and more closely, the inner soul of the people. On some great and glorious day the plain folks of the land will reach their heart’s desire at last and the White House will be adorned by a downright moron.”
Perhaps we are not quite there yet. Anyway, Americans are entitled to the president of their choice. But please do not refer to your latest selection as the “leader of the Free World”. Some parts of the Free World still have standards.