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蕭叔叔短評被譽為「人生有呢種朋友不枉此生」的黃仁龍那十頁紙求情信

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I have known Mr Donald Tsang since 2005. As Secretary for Justice (SJ), I worked closely with Donald as Chief Executive (CE) between October 2005 and June 2012. In addition to official dealings, I consider Donald to be a good friend and someone I admire for his dedication to public service.

Donald's over 40 years of service and contribution to Hong Kong is a matter of public record. Others will speak to his key role in helping Hong Kong weather through stormy financial crises. Here I would refer to his significant contributions to the public based on my own personal experience particularly in the area of the rule of law in Hong Kong.

During my 7-year tenure as SJ, I had on numerous occasions tendered legal advice to Donald as CE. He would sometimes debate with me and test the basis of the advice; but he has never acted against such legal advice. This in itself is a remarkable attribute as the head of the HKSAR.

Donald always said to me the Governors he previously worked with, however headstrong, would always abide by the legal advice of the Attorney General, and it is important that the CE of the HKSAR should stay that way.

Congo Case

One of the most important tasks, if not the most important task, of the CE of HKSAR is to faithfully and effectively implement the principle of “one country, two systems.” The power of the Standing Committee of the National People’s Congress (NPCSC) to interpret the Basic Law and its exercise have always been considered a major challenge to the post-1997 constitutional order.

During my tenure as SJ, the NPCSC interpreted the Basic Law once in 2011. That was upon the reference by the Court of Final Appeal (CFA) on the question of state immunity. The issue in the case is whether the People’s Republic of China’s doctrine of absolute immunity (under which no foreign state can be sued in the court at all) should be followed in Hong Kong. Prior to 1997, Hong Kong’s common law provided for restrictive immunity, where foreign states could be sued if the dispute arouse out of commercial transactions.

The HKSAR Government lost in the Court of First Instance and in the Court of Appeal. If the Government were to lose again in the CFA, it could stir up serious political and economic repercussions for China particularly vis-à-vis her African friends. National interest of China was at stake. The Ministry of Foreign Affairs was understandably very concerned.

Immense political pressure mounted. There were suggestions that Beijing should not take any risk but should consider taking more definitive measures such as an interpretation of the Basic Law before the appeal was heard. If that were to happen, on the eve of the appeal hearing, the damage to judicial independence would not be less than an overriding post-judgment interpretation.

I cannot go into further details for confidentiality reasons. However, I can testify that Donald has been solid and staunch in endorsing my stance against any extra-judicial measure in view of its adverse impact on the rule of law.

Owing in no small part to Donald’s endorsement and resolve, the Central People’s Government (CPG) was content to trust the HKSAR Government and the CFA, and to leave the appeal to be heard by the highest court, despite grave risk and many conflicting views given by others. At the end, the Government won in the CFA by a majority of 3 to 2. The Court further referred the relevant Basic Law provisions to Beijing for interpretation, as required under Article 158 of the Basic Law, before pronouncing the final judgment. A huge constitutional crisis was warded off. The rule of law had prevailed.

Over this difficult episode, I know Donald had been under tremendous pressure. I remember often times he suffered from acute acid reflux before and after major discussions. Yet he stood firm throughout.

As CE, Donald had faithfully discharged the indispensable trust reposed by both the CPG and by Hong Kong. He had the courage to stand by what he believes to be right and the ability to address mutual concerns and to strengthen mutual understanding. He had performed well the crucial bridging role in the two-way process under “one country, two systems” at critical times.

Constitutional Reform

There was another important event in which Donald’s principled stance had been vital in achieving a favourable result for Hong Kong: constitutional reform.

Although no change could be made of the imminent 2017 CE election method due to the set-backs in 2016, during Donald’s tenure as CE, he has been made significant contributions toward moving Hong Kong closer to universal suffrage.

The first landmark was achieved, with tremendous efforts by the core team under Donald’s lead, when the NPCSC delivered its decision in December 2007 setting out “the timetable” and “road map” for universal suffrage in terms of the elections of CE and Legco.

Second, in 2010, the Government managed to secure Legco’s support to pass the 2012 constitutional reform package. Here, Donald had played a pivotal role, one perhaps not many are aware of.

Whether the 2012 reform package could be passed in 2010 was crucial to ensure “gradual and orderly progress” and that the next round (i.e. the intended goals of universal suffrage in electing CE in 2017) could be achieved.

In June 2010, the original government proposal was losing support and hope was vanishing for it to be passed at Legco. Time was running out. Whether to modify the package by incorporating a proposal of the Democratic Party (i.e. the additional 5 District Council Functional Constituency seats to be elected by over 3 million electorate, “the new DCFC election method”) appeared to be the lynchpin.

Without going into details again for confidentiality reasons, I can again testify that the make-or-break moment was when Donald made the timely and difficult decision to revise the package by incorporating the new DCFC election method. It was an agonizing decision for him as he had to override certain internal opposition and to risk personal credibility and trust before the CPG. As an insider, I know that decision was not a political manoeuvre but a selfless act for the sake of the long-term wellbeing of Hong Kong and the smooth transition toward universal suffrage.

Son of Hong Kong

Donald is truly a “son of Hong Kong” (香港仔). His genuine concern for the public good is most vividly demonstrated when Hong Kong was caught in crises of one kind of another.

Hong Kong went through attacks of avian flu and swine flu. Donald tirelessly headed the cross-bureau task forces and chaired long and intensive meetings. I remember more than once Donald being caught in very heated debates with colleagues, pushing them to the limit to mobilize maximum resources and manpower, in order to give the public maximum protection against these outbreaks. He would grill colleagues over thorny issues such as requisitioning hotels as places of quarantine, not satisfied with the usual civil service response of reluctance, as lives of many were at stake.

Over the Manila hostage incident in August 2010, Donald vigorously pressed the President of the Philippines for full investigation, joining the victims’ families and the rest of Hong Kong to cry for justice, although his action raised eyebrows as foreign affairs strictly is a matter of the CPG under Article 13 of the Basic Law.

Donald had a strong concern for young people. During my tenure, exceptionally I was commissioned to chair a Steering Committee to combat drug abuse by youth. The public might not realize this initiative in fact came from Donald. He was deeply concerned and alarmed by the reports reflecting the seriousness of the problem. He was determined to tackle the problem pro-actively. The Steering Committee was unprecedented, involving concerted and strategic efforts of different departments and bureaus. More importantly, Donald was instrumental in putting in substantial and sustainable resources to strengthen the efforts. The figures of reported drug abusers, particularly among young abusers, have seen significant decline in the past few years.

Other contributions on the rule of law

There was no shortage of controversial cases involving judicial reviews and fundamental human rights. Amidst other voices and political pressure, Donald had fully taken on board the legal position that the Government has a positive duty to protect such rights, including taking reasonable and appropriate measures to enable lawful demonstrations to take place peacefully.

Further, Donald also readily took on my advice regarding procedural fairness in handling Government businesses with quasi-judicial element such as administrative appeals.

Donald truly believes in judicial independence. He assured me repeatedly the independent and internationally renowned Judiciary in the HKSAR is our pride and the cornerstone of our success. His personal commitment to this cause is manifested in his positive response in acceding to many recommendations of the Mason Report endorsed by the Standing Committee on Judicial Salaries and Conditions of Service.

Furthermore, his conviction on the importance of the law as Hong Kong’s assets was amply manifested in his exceptional support in the development of Hong Kong’s capacity as an international arbitration centre. Donald was very understanding on the need of expansion on this front and had put in personal efforts to make it happen. He was instrumental in enabling resources are in place to secure additional space for the Hong Kong International Arbitration Centre, and to procure the arbitration arm of the International Chamber of Commerce and the China International Economic and Trade Arbitration Commission to set up regional offices in Hong Kong.

A fair man who has given much to the public

Before joining the Government, I was an Election Committee member of the Legal Subsector elected on the same ticket as Ms Audrey Eu, Mr Alan Leong and other vocal barristers. In that capacity, in 2005, I first met Donald in an election forum where I questioned him harshly and criticised the Government’s earlier attitude over certain rule of law issues. Instead of bearing any grudge, in the late summer of 2005, Donald invited me to take up the post as SJ, assuring me that he would give me full support in upholding the rule of law in Hong Kong. That quality of fairness in Donald and that personal assurance to me have never slackened in the following 7 years in which I served in his cabinet.

As CE of the HKSAR, Donald had truly poured himself out. I strongly believe his significant contributions to Hong Kong in the past over 4 decades should be properly recognized.

Dated the 20th day of Februray 2017.

Wong Yan Lung SC

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【#TheDiplomat: 沈旭暉隨緣家書英文版🇭🇰】很久沒有向國際關係評論網 The Diplomat 供稿，但國際線十分重要，不應放棄。這次他們希望分享23條、國安法、反恐法風雨欲來的「新香港」前瞻，願國際社會能多了解快將出現的危機：

While the world is preoccupied with a fight against the COVID-19 pandemic, Beijing has been tightening its political grip on all aspects of Hong Kong’s civil society. Rumor has it that Beijing will push through legislating national security laws under Article 23 of Hong Kong’s Basic Law by unconventional means, such as massively disqualifying pro-democratic legislators or even directly applying a national law, widely argued as a major step to destroy the rights and freedom of Hong Kongers, and bring Chinese authoritarianism to Hong Kong.

After the 2019 protests, the administration of Carrie Lam, who theoretically is still leading the special administrative region of China, has little political capital at stake, with its legitimacy reaching rock bottom. The pro-government camp has dwindling prospects for the city’s upcoming Legislative Council election. The government‘s ”nothing to lose“ mentality is apparent from its recent blatant reinterpretation of the Basic Law’s Article 22 (another article that limits the influence of China’s offices in Hong Kong’s internal affairs). The debate is nothing new, but the pressure this time is quite different.

This article highlights the different strategies Beijing could adopt to enact Article 23 insidiously or under disguise to avoid backlash from the international community, while continuing to reap benefits from the city’s globally recognized special status. This seems to be part of Beijing’s brinkmanship to bring Hong Kong protesters and their supporters to their knees and move the city closer to authoritarianism. To counter these moves, Hong Kongers must define the boundaries beyond which Hong Kong falls into authoritarian rule and make a case as to why the city’s downfall is detrimental to the international community‘s interest.

The Long-Term Controversy Over National Security Laws

Back in 2003, the implementation of Article 23 was thwarted by the moderate pro-establishment politician James Tien. In face of overwhelming public disapproval of the law, he withdrew support and votes from his Liberal Party. However, 17 years later, it is hard to imagine Beijing following the old legislative playbook: start with a public consultation, followed by public discourse and political debate, and end with the majority rule. This playbook only works in peaceful societies ruled by a trustworthy government with integrity.

The aftermath of 2003, as well as the 2019 protests, should have taught Beijing and the Hong Kong government a lesson: pushing through national security legislation in a flawed parliament controlled by the minority pro-government camp would inevitably set off another full city-scale protest — and undoubtedly more fierce and focused this time. Given the current government’s numerous displays of dishonesty, it is conceivable that they will embark on a less-traveled path to implement Article 23.

Strategy One: “Anti-Terrorism”

In principle, one possible strategy could be to directly enact Chinese national law across Hong Kong, which can be achieved by declaring a state of emergency in the city. However, this is risky business as it would tarnish the integrity of “one country two systems” and subsequently Hong Kong’s international standing. Beijing, a risk-averse regime, is also unwilling to see Hong Kong’s status as a middleman for laundering money disappear into thin air.

Instead, Beijing could be concocting a narrative that would see Chinese national law applied to Hong Kong while not damaging Hong Kong’s international standing and Beijing’s own interests. The key word in this script is “anti-terrorism.” As early as 2014, pro-Beijing scholars have been claiming the emergence of “local terrorist ideology” on Hong Kong soil. Since the anti-extradition bill protests last year, government rhetoric frequently described the protests, which caused no deaths at all in the entire year, with phrases like “inclination to terrorist ideology.” That was a signal to the world that Hong Kong’s internal conflicts had ballooned into a national security issue. This gives the government the legitimacy to justify the implementation of Chinese national laws across the highly autonomous region to counter terrorism. The Chinese government knows that if it can persuade the world that terrorism exists in Hong Kong, and that it is as severe as the terror threat facing many other nations today, the international community will be less critical of Beijing’s actions in Hong Kong. Enacting Chinese laws directly is a convenient path that will save Beijing from having to tackle Hong Kong’s internal conflicts, basically turning the Hong Kong issue into a nonissue.

Strategy Two: Stacking the Legislature by Disqualifying Candidates

An even bolder strategy was probably foretold by a recent incident where the Hong Kong government and Beijing’s agencies for Hong Kong affairs (HKMAO and the Liaison Office) jointly criticized lawmaker Dennis Kwok for filibustering, framing it as “misconduct in public office” and “violating his oath.” It is incomprehensible to claim that filibustering goes against a lawmaker’s main duty; rather, it is common understanding that legislative work includes debating the law and representing public opinion against unreasonable laws. In a parliament controlled by the minority, pro-democratic members representing the majority of Hong Kongers are forced to express their objections using means like filibustering. Wouldn’t a lack of different political opinions turn the legislative branch into a rubber-stamp institution?

The above allegation has set a dangerous precedent for twisting the logic behind a certain provision in the Basic Law to target opposing lawmakers. In other words, to fulfill Beijing’s interpretation of the principal requirement for holding public office in Hong Kong, one could be required to take a meticulously legalistic approach to uphold the Basic Law down to its every single wording. A public official, by this new definition, not only needs to support “one country, two systems” or object Hong Kong independence, but also must abide by every single provision in the Basic Law. Worst of all, based on the previous cases, whether an official’s words or actions oversteps a provision is up to Beijing’s interpretation of his/her “intent.”

If this approach is applied, in the next election, there might be additional official questions for screening candidates like the following: “The Basic Law states that the enactment of Article 23 is a constitutional duty. Failing to support Article 23 legislation violates the Basic Law. Do you support it?” This question would suffice to disqualify even moderate or even pro-establishment candidates like James Tien. Even if any pro-democratic candidates were elected, once Article 23 re-enters the legislative process, they could risk ouster by raising objections.

Despite the absurdity of this tactic, the Chinese regime may just be tempted enough if such a strategy could resolve two of China’s current nuisances — voices of dissent in the Legislative Council and the previous failure to implement Article 23.

Strategy Three: The “Boiling Frog Effect”

Article 23 is not yet implemented, but the dystopian world that the protesters pictured in 2003 is already becoming reality. Regular citizens have been persecuted for “sedition” for sharing their views on social media or participating in legal protests; workers face retaliation for taking part in strikes; corporations are pressured to publicly side with the government’s stance; employees who have the “wrong” political views are fired; schools have been closely monitored for teaching material; protest-supporting fundraisers were framed for money laundering; a retweet or like may lead to persecution, under a colonial-era law. Only now have Hong Kongers woken up to their new reality — although the Basic Law technically protects citizens’ rights to speak, rally, march, demonstrate, and go on strike, the government could enfeeble civil rights by bending antiquated laws and legal provisions. The frequent abuse of law enforcement power on a small scale, such as improper arrests and police violence, is desensitizing the public and the international community. In a few years, Hong Kong will become unrecognizable. This is indeed a clever play on Beijing’s part to slowly strip away Hong Kong’s autonomy and freedom, without causing much international attention.

Counter-Strategies Against Beijing’s Brinkmanship

Beijing’s overarching goal is to hollow out Hong Kong but, at the same time, avoid major backlash from the international community, which could spell the end of the privileged global status of Hong Kong not granted to other Chinese cities. Beijing also aims at preventing single incidents that could cascade down into mass protests as seen in 2003, 2014, and 2019; and eliminating any resistance forces from within Hong Kong’s legislature. The tactics outlined above are typical in a game of brinkmanship.

In response, Hong Kongers in Hong Kong and on the so-called “international frontline” must know their strengths and bargaining chips on this negotiating table with Beijing.

Unlike Xinjiang and Tibet, Hong Kong is a city with transparency and free flow of information. Hong Kongers need to make a case to the world that the protests are not acts of terrorism. Some suggestions include comparing the Hong Kong protests to similar struggles in 20 or so other counties in the world at the present time, none of which were classified as terrorism; collecting a large amount of concrete evidence of the disproportionate use of force by the Hong Kong police; and showing how enacting Chinese national laws in Hong Kong will end the city’s autonomy and spell disaster for international community‘s interests.

The Legislative Council is the institution that can counteract Beijing’s “boiling frog” strategy and to keep Hong Kongers’ hope alive in the system. Those who plan to run for legislative office must be prepared to be disqualified from running. If only individuals are banned, there need to be alternative candidates as back-up plans. However, if and when the disqualification process is applied broadly to entire camps of candidates (for example, all who object to Article 23), the pro-democracy camp must make a strong case to the Hong Kong and global public that this is the endgame for Hong Kong democracy. Then the incumbent popularly elected legislators will hold the internationally recognized mandate from the public and serve as the last resistance.

These recommendations delineates how the slogan “if we burn, you burn with us,” often seen in the protests, may play out in the game of international relations. If the national security laws are “passed” by a legislature that is jury-rigged in this manner, or if related national laws are directly implemented in Hong Kong, Hong Kongers should signal clearly to the world that it goes way beyond the promised “one country, two systems.” Crossing this red line by Beijing should be seen by the world as a blunt violation of its promised autonomy to Hong Kongers. At that time, if the international community led by the United States and the United Kingdom decided to revoke the “non-sovereignty entity” status of Hong Kong and regard the SAR as an ordinary Chinese city, it shouldn’t come as a surprise.

Dr. Simon Shen is the Founding Chairman of GLOs (Glocal Learning Offices), an international relations start-up company. He also serves as an adjunct associate professor in the University of Hong Kong, Chinese University of Hong Kong and the Hong Kong University of Science and Technology, and associate director of the Master of Global Political Economy Programme of the CUHK. The author acknowledges Jean Lin, Coco Ho, Chris Wong, Michelle King, and Alex Yap for their assistance in this piece.

▶️ 高度自治 vs 全面管治
https://www.youtube.com/watch?v=pwt8wZl8jHQ

Don’t get overawed (Lee Yee)

On the day that the National Security Law was passed by the National People’s Congress, I got a message of a friend from afar: “Are you secure?” I answered without even giving it a thought: ”No one is secure in a secure country.”

When maximal authority of a country is realized, individual rights are so minimal that no one is secure. Even in China where the plebs would answer with a big NO, are people in power secure? Was Liu Shaoqi, the late Chairman of the People’s Republic of China persecuted to death during the Cultural Revolution, secure? In the past 70 years, have most of the people in power of different levels been secure in view of the miseries they have encountered? Was and is Jiang Zemin, the former General Secretary of the Chinese Communist Party(CCP), secure? Is Xi Jinping secure?

The befalling of the National Security Law is likened to “the second handover of Hong Kong”. An online article points out “the difference between the first and second handover” is that “the people who resent the CCP in 2020 is countless times more than those in 1997, and in terms of reputation, conduct and calibre, the people who espouse the second handover in 2020 are not even comparable to those who espouse the first handover in 1997”. Another says that “Hong Kongers belonging to no country before handover used to live in peace and work with contentment”, and asks “where their homes are when they belong to a nation”? In China, even the movers and shakers evacuate their relatives by fair means or foul from their country to a strange place they call home in the West.

The Articles of the Hong Kong version of National Security Law was not announced until it took effect, so that Carrie Lam was unable to utter a word about the details of it on the day of implementation of the Law. Legislation as such is preposterous. The full text of it is awash with equivocal meanings of unfinished wordings, which is so jaw-dropping that even a layman would ask: What kind of legal document is that? Zhao Sile, a journalist from China, said online: “The Law is typically from China because the laws of China have always been ambiguous and ill-defined”. She continued, “How are they enforced? Arbitrary and flexible provisions are made by different administrative departments which then inflate in power unceasingly.”

Regarding the abovementioned, it is almost pointless to delve into every Article of it for clarifying under what circumstances does one offend and not offend the Law, and where the grey areas are. Take those dubbed the “four ringleaders of Hong Kong independence” and “gang of four that jeopardizes Hong Kong” by Chinese media as an example. While they are known to be opposed to Hong Kong independence and even anti-localist, and did not advocate the protest last year, China deems them to be guilty of all of the above by dismissing the actuality. Subsequently, some budding political groups disbanded in no time. However, if the CCP decides to recriminate, on no account can they escape. That being said, it is possible that China will sit on the issue of Hong Kong independence provisionally in an attempt to dilute the sanctions against it from overseas. With the arbitrariness and flexibility of laws of China and its enforcement, no one is secure, nor one is doomed to committing a crime. Falling into a trap is simply akin to running into a car accident.

Looking at the National Security Law, Hong Kongers, who are accustomed to living under the rule of law, will naturally get frightened and anxiety-ridden, and try to wash their hands of sensitive issues. They think they will stay secure by stopping short of slogans with content of “secession of state” or disbanding a political group. In reality, if the CCP wants to get you in trouble, it does not have to leverage the National Security Law. Manipulated by the CCP, the SAR government can do and will do whatever stipulated by the National Security Law. Is the Law retroactive? Wasn’t the disqualification sentence for Leung Chunghang and Yau Waiching, former Legislative Council members, retroactive? And the judge that brought in the verdict based on retroactivity was Andrew Cheung Kuinung, the next Chief Justice of the Court of Final Appeal to-be. Does it make sense to contemplate upon the situation differently before and after the enactment of the National Security Law?

Now that the CCP can do whatever it wants. Is the enactment of the National Security Law an unnecessary move? As Chinese officials said, the Law, like a sword dangling above Hong Kongers, is to get them overawed and frightened.

Scared? Surely. Yet, one should have been scared much earlier on. If one had been scared, one would have arranged for fleeing from Hong Kong. Those who choose to stay should not let fear take control of them.

I have always remembered what British writer Salman Rushdie wrote after September 11 attacks in 2001: “Amid the conflict between liberty and security, we should always opt to stand with liberty without remorse even though we make a wrong choice. How do we beat terrorism? Don’t get overawed and don’t let fear take control of you even though you are scared.”

The late U.S. President Franklin Roosevelt said, “The only thing we have to fear is fear itself.” If we let fear take control of us, we give up liberty.