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Posts Tagged ‘basic law’

Whatever you think of the government’s proposed “reform” of the electoral system it is surely depressing to contemplate the barrage of propaganda, argument and lies to which we shall be subjected in coming weeks.

The question to “pocket” or not to “pocket” is one to which there is no single answer. The argument boils down to different predictions of the future. If we do A then X will occurr, if we do B then Y will happen. Or vice versa. But the future is essentially unknowable. Even the predictions of experts, research has shown, do little better than chance. Clearly people are choosing particular predictions for reasons of their own. Careful considerations of fact and logic have nothing to do with it. Many of the predictions insulate themselves from close scrutiny by hiding in metaphors. So Carrie Lam says Hong Kong is “at a crossroads” and could fall into a “political time warp”. Whatever that means.

It is distressing to find academics, who as seekers after knowledge should be aware of its limits, playing this game. And even more distressing to find them lending the spurious gloss of learning to fallacies popular among the local disciples of despotism. Consider the argument, seriously advanced by two of the op-ed page prostitutes last week, that if it can be shown that a majority of the public supports the government plan, then all legislators have a democratic obligation to vote for it. The usual objection to this comes from Edmund Burke: “Your representative owes you, not his industry only, but his judgment; and he betrays instead of serving you if he sacrifices it to your opinion.” I am not a great fan of Mr Burke. But it is surely true that the first obligation of a legislator is to do the right thing for Hong Kong, whether that is currently popular or not. Actually this argument is based on a fallacy, because it is far from clear that a majority of Hong Kong people want the reform to pass. Both sides have managed to run polls indicating support for their views. The question implies the answer. Nobody is going to say “no” to universal suffrage or “yes” to fixed elections. But these words describe the same thing.

A more fundamental objection is that the drafters of the Basic Law could easily have devised a system in which all legislators needed the support of a majority, and could then have been expected to vote in the weathercock way which Lam fans now urge. But the Basic Law deliberately sought to have a Legco in which a wide variety of interests and views were represented. Clearly a system with real estate and banking functional constituencies was not intended to reflect the public’s views in a simple majoritarian way. Why should it do so now? Moreover the requirement that a change in the electoral arrangement requires a two-thirds majority in the chamber clearly implies a more demanding objective than majority support in the community. If a “super-majority” of this kind is required we must suppose that the law drafters had in mind a requirement that a proposed change should not just be acceptable to 51 per cent of the population, but should be widely and generally supported. If large numbers of elected members are prepared to vote against it then that requirement has not been met. It is ironic that the people who are most adamant about the need for changes to conform to the Basic Law are most contemptuous of its provisions in their efforts to get the changes approved. The electoral system was designed, we are often assured, to ensure the representation of many groups and interests. Those who despise sham elections are a substantial group. The system works!

Actually there is a fundamental hypocrisy in the argument that legislators should follow public opinion, because the people offering this do not apply it elsewhere. If legislators were mere implementers of the popular will they would long since, to take a simple example, have voted C.Y. Leung out of office. Mr Leung’s lack of popularity is so well-known that some supporters of the government reforms use his prospects of reelection as a threat. If we keep the present system we will have Lufsig again! I have not seen any criticism of legislators on this score from the people now urging the democratic need for a vote which goes with the public will. It is an argument of convenience, wielded when the polls go one way and dropped when they go the other. Those offering it do not even accept the obvious corollary that if the polls fail to show a clear majority for the “reforms” then all conscientious councillors should vote against them.

Another argument we are going to hear too much of is that the government’s proposals are “a compromise”. This is a word which has a long history in this context. all of it depressing. A compromise is a situation in which two people with different ideas or purposes make some roughly equal sacrifice to reach agreement. So if I offer you $20,000 for your car and you demand $40,000 then an agreement to pay something in the region of $30,000 can be regarded as a compromise. As far as political reform is concerned many compromises have been offered. Some people, having seen one compromise rejected, have offered another one. The one thing which all these suggestions have in common is that they have been rejected. Some were rejected on the grounds that they would violate the Chinese constitution, implausibly depicted as a virgin for whom this would be a new experience. Some were rejected on the grounds that they violated the Basic Law. Some were rejected on the grounds that pro-government legislators were no longer in the mood after Occupy Central. Some were rejected on the bizarre basis that they had not been greeted with great enthusiasm by the pan-democrats.

So there has been no compromise. The consultations were as bogus as the envisaged elections. Nothing was changed. There have been no concessions. Mr Leung may be right in supposing that there is no prospect of concessions in the future. Certainly there have been none so far. So the people who are still calling for compromise are out of time. Compromise is not on the menu. What you are asking for is surrender.

Finally a word for those unfortunate Post reporters whose task it is to find anonymous supporters for the government line. I understand people might not wish to have their names attached to this, but please keep the vague characterisations plausible. We were told the other day that the upcoming plan had been endorsed by a “top diplomat in Hong Kong”. Bullshit. There are no top diplomats in Hong Kong. Hong Kong is not a capital and does not have embassies. Consuls-general have limited functions and diplomacy is not among them. Being a consul-general is an honourable pursuit and no doubt some of the younger ones will go on to higher things but they are not, during their time here, top diplomats.

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Following the law

Am I the only person in Hong Kong who is getting a bit fed up with the spectacle of Chinese officials lecturing us on the need to follow the Basic Law, the Law as laid down by the relevant NPC committee, and indeed the law generally. These people know nothing about the rule of law. They do not follow it themselves.

The first thing you have to learn about the Chinese legal system is that China does not have a “legal system” in the sense in which these words are usually understood. The legislature does not legislate, the judges are Party puppets, the constitution is a work of fiction and the secret police do whatever they like, or whatever they are told by party bigwigs. In fact the only part of the “legal system” which conforms to the label on the tin is the prisons.

Under these circumstances it takes a great deal of gall – though not too much apparently – for some bozo in Beijing to deliver a message on the need for lawfulness to Hong Kong people who routinely obey real laws in their daily lives. Basically the law in China means whatever the government wants it to mean at the time. If this is the spirit in which the Basic Law should be interpreted then people should say so, not pretend to be defending a principle of which they know nothing.

One of the so-called “Guardians of the Basic Law” died the other day. The last one, thank goodness. These gentlemen, of whom there were originally four, were wheeled out occasionally to tell us what the Basic Law drafters really meant. It is instructive, in this context, to consider the backgrounds of geriatric legal “experts” in Chinese law. The last guardian to pop his clogs was 85 years old. This means that the rule of law in China was abandoned as a bourgeois relic when he was aged 20. I assume that he was not in a “liberated area” before the Revolution. He was then immersed in the dictatorship of the proletariat until 1978, when the idea first surfaced that some sort of legal system might be a good idea. At that point he was aged 50. Installing this project took maybe another ten years, by which time our guardian had reached the age at which many people retire. By the time the Basic Law had been drafted he was 67. When his memory was being treated as a sort of self-propelled oracle he had reached the age at which many elderly people have trouble remembering their own phone numbers. Clearly this gentleman had a talent. Not, probably, for law though.

Meanwhile we have Hong Kong officials complaining that nobody is making proposals for the next CE election which comply with the legal requirements. Look, ladies and gentlemen, if the legal requirements are so technical that they require half a page of the SCMPost sprinkled with little bits of Latin to explain them, then you should not expect ordinary members of the public to make detailed proposals. It is actually perfectly clear what Hong Kong people want: they want a fair election, which means one in which any candidate who is not ruled out by crime, insanity or some similar defect can campaign for election, and if widely supported can run with a chance of winning. Whether this is achieved through changes to the nominating committee, or the nominating rules, or in some other way, should not be our concern. The government has leaping legions of lawyers who can be prodded from their post-prandial slumbers and asked to design an electoral system which works and meets legal requirements.  Otherwise we shall suspect that this is just another “consultation” which is going to end in the conclusion that public opinion is divided so the government will go ahead with what it was going to do anyway.

Which I fancy means that the next CE election will be as fixed as the last one was. Prepare to be invited to choose between two candidates, each of whom occupies not one but two luxurious houses in the best parts of town, festooned with illegal structures, and who have an unbroken record of dogged sycophancy which has kept them on the lovers of the Liaison office list. I suppose the people who signed the Joint Declaration and drafted the Basic Law may have supposed that a genuine election in 2017 would eventually ocurr. But then was then and now is now. Every change in China’s leadership is accompanied by the widely voiced hope — even prediction — that the new incumbent will be a reformer who thinks it is time human rights were recognised in his country. The hope is always in vain. Only we pessimists are never disappointed.

 

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