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Posts Tagged ‘hk-basic-law’

The primary polls case: from a distance, it’s a duck

Posted in Uncategorized, tagged , , , on November 28, 2024| 2 Comments »

One of the distressing things about writing for the media in Hong Kong these days is that there is one law for the government’s supporters and another for the rest of us. The system is, as a Brazilian president once put it, “for my friends, everything; for my enemies, the law.”

So during the trial of the 45 primary poll participants, carefree writers in pro-government publications were free to imply that all the defendants were guilty of the crimes charged, and some of them were guilty of other things as well. This used to be illegal. The offence is known as strict liability contempt of court.

You are not allowed to imply a particular conclusion for the trial, so it is also illegal to imply that the defendants are innocent. None of the numerous people who held this view dared to publish it. There has only been one prosecution for this offence in the last two decades. The accused publication was Apple Daily. One gets the message.

However, now the matter has concluded a few local voices, and some overseas ones, have ventured the opinion that all was not well with this case. And in due course this produced a predictable response from the government, and some more interesting ones in other places.

Oddly, though, these responses tend to ignore the most important criticisms. The question which has been awaiting an answer since before the trial, and indeed before the primary, is how can this possibly be illegal?

Lord Sumption (a very senior retired judge) having removed himself to a safe distance, put it bluntly. The Basic Law, he said, explicitly authorised the Legislative Council to reject the budget and … force the city’s leader to resign. It now appeared that “Legco cannot exercise an express constitutional right for a purpose unwelcome to the government.”

His Lordship characterised the situation as “legally indefensible”. This is a serious fundamental objection to the whole case. The council has a power conferred by law, and a procedure specified through which that power can be exercised. How can it be illegal for a candidate for election to say that he or she will, if elected, activate the procedure and exercise the power?

This point seems to elude commentators. Even Cliff Buddle, in an otherwise admirable dance along the tightrope that independent commentators all perform on these days, summarised the crime as the defendants intended to “blindly veto the government’s budget”. But blindness had nothing to do with it. The procedure was intended to allow the resolution of a situation in which the council and the Chief Executive could not get on with each other. The merits of the budget as a budget were not relevant.

Of course times have changed since the Basic Law was drafted in the 1990s. It seemed conceivable then that in some unlikely set of circumstances, and with a procedure designed to be discouraging, there might eventually be an occasion when it was acceptable for an elected Legco to dispense with the services of an elected Chief Executive. And the mainland officials who were “consulted” about the law went along with this.

Nowadays mainland officials are all subscribers to the theory of “whole-process democracy”, in which wisdom descends the pyramid from layer to layer like those extravagant displays in which a large bottle of champagne is used to fill several layers of wineglasses. The idea of someone appointed by them being fired by a local legislature is not acceptable at all.

The second objection which seems to have passed defenders of the prosecution by is that the prosecution’s case is based on the notion that sacking the Chief Executive would precipitate a “constitutional crisis”, paralyse the government or overthrow the system.

This is an entirely fictitious prospect drummed up to justify longer sentences. Whatever the organisers of the referendum may have dreamed, the Basic Law provides for a continued orderly and effective government at all stages of a bid to fire the Chief Executive. If there is no budget the government is authorised to continue with the old one. If there is no Chief Executive another official takes over pending the election of a replacement.

Of course there would still be considerable embarassment for whoever chose the CE in the first place. But embarassing officials is not a crime. Is it?

More forgivably, local commentators do not seem to pick up the fact that people overseas are considering the case in its context. As a poet once put it “You can tell a man who boozes by the company he chooses,” and the same thing applies to government actions.

For a government to jail large numbers of opposition politicians will always inspire suspicion. OK, politicians do get up to mischief, but are our guys completely innocent?

However when said jailing is accompanied by a blizzard of stories in which elections are cancelled, rules are changed, critical people are prosecuted for long-forgotten offences, companies and societies are abruptly closed, student unions disappear, and laws are changed to make it easier to prosecute … well never mind the details. The view from a distance is based on the overall impression: if it looks like a duck, walks like a duck and quacks like a duck … it’s a duck.

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The trial of the 47: would it really be the end of the world if the CE had to resign?

Posted in Uncategorized, tagged , , on June 5, 2024| Leave a Comment »

Well we have been waiting four years for some judicial explanation of an enduring mystery, and we’re still waiting. What could possibly be wrong with holding a primary election?

We have some progress. Looking at the outcome of the Trial of the 47 primary participants it appears that it is not the primary as such which is the problem. The problem is what you say you’re going to do afterwards.

Leaving aside the lurid things which some candidates said or wrote in the exciting pre-election atmosphere the basic plan was to pursue the “five demands” of the 2019 protests, and if necessary to that end to vote against the government’s budget bill. This would activate a process specifically designed by the Basic Law drafters to deal with the possibility of irreconcilable differences arising between Legco and the Chief Executive, and contained in BL Article 52.

The three national security judges entrusted with this case seem to have found this quite horrifying. There would be “dire consequence” from “persistent vetoing of budgets” leading to “serious adverse consequences on the operation of the government”.

This is a recurring theme. Convicting Kalvin Ho the judges said that: “We are sure that [Ho] knew that indiscriminately vetoing of the budgets would result in a constitutional crisis and the ensuing paralysing effect on the operations of the Government.”

Helena Wong “must be aware that indiscriminate vetoing of the budgets would result in a constitutional crisis with the effect of paralysing the operations of the Government.”

On Leung Kwok-hung, “As a former LegCo member and a veteran politician, we were sure that he was fully aware of the dire consequence of persistent vetoing the budgets by the majority members of the LegCo. No doubt he would have known that it would cause serious adverse consequences on the operation of the Government,”

The amateurs were if anything more extreme. Mark Pinkstone’s gloatpiece for the China Daily observed that “The successful candidates would veto the government’s budget and other crucial bills after gaining control of the LegCo, thus forcing the chief executive to step down, making the Hong Kong Special Administrative Region government inoperable, and thus causing a constitutional crisis. That is subversion, an attempt to overthrow the government, the epitome of anarchy.” Another writer in the same publication said the by-election plotters would have caused “chaos.”

All of this is, actually, nonsense. No doubt some of the 47 defendants would have been quite happy with the idea of a constitutional crisis, chaos, or even anarchy. But to consider this even a remote possibility is to underestimate the care with which the Basic Law was drafted.

The easiest way to look at this may be to go through the possible outcomes one by one.

The first one, obviously, is that the democrats do not achieve a majority in the Legco election. In that case there is no problem. The second possibility, also harmless, is that they do win a majority but this is swiftly corroded by that magical process by which former pillars of the British colonial establishment turn into fervent admirers of the Chinese Communist Party. I have no idea how this is done but it happens too often to be a mere coincidence.

The next possibility is that the democrats do achieve a majority and submit their demand for the “Five Demands”. Our three judges, with impeccable hindsight, say that the government would never have agreed to these. But suppose that the government gives ground on those demands which are within its gift. There will now be a temptation for some of the more dilute democrats to declare victory and desist from opposing the budget. Because the next step is that under BL Article 50 the Chief Executive may dissolve the council. Newly minted councillors will lose their status and perks while these are still a fresh and pleasant experience. Nobody can persistently veto anything. Reject one budget and you have to be elected again, or not.

If there is no compromise, then, we have a new Legco election. Maybe the democrats lose this time, in which case the new Legco passes the budget and chaos is averted. If the new council also refuses to pass the budget then the Chief Executive has to resign under BL Article 52.

This is presumably the point at which in Mr Pinkerton’s view the SAR becomes “inoperable” or there is, as the judges put it, a “paralysing effect on the operations of government.” But this event is provided for. Under BL Article 53 the outgoing CE is temporarily replaced by the “Administrative Secretary, Financial Secretary or Secretary of Justice” in that order of preference, and a replacement CE must be chosen within six months.

Meanwhile, in the absence of a budget the acting CE can under BL Article 51 ask the Legislative Council for “provisional appropriations according to the level of expenditure of the previous financial year”. If there is no Legco present the CE can approve such appropriations without anyone else’s help. If Legco is present, but unhelpful, it can be dissolved again.

In other words, no crisis, no chaos, no anarchy, no government grinding to a painful halt. I realise that the selectors of national security judges have other things on their minds than picking the brightest bulbs in our local judicial chandelier, and three years of rampantly prejudicial publicity have not helped. Some of the more excitable defendants clearly expressed themselves in apocalyptic terms, but it is a commonplace political observation that promises in primary elections are generally diluted when the candidate has to present himself to the electorate in general, and diluted even more if he or she actually gets elected.

Still, the situation seems to be that in the 1990s it was considered acceptable, in extreme cases, for a chief executive to be forced to resign by a partly elected legislature, and in the 2020s this has come to be regarded as the end of the world. Perhaps the Basic Law should be updated to reflect this.

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