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Cause for concern: The law according to Carrie Lam

It is really far too early to make any sort of judgement on our new Chief Executive. Carrie Lam has only been in the post for a few months. There is time for improvement.

There is also cause for concern. The good lady seems to be quite unable to look ahead at the obvious consequences of her speeches.

carrie lam express rail

File photo: Carrie Lam, via Facbeook.

Let us take Carrie on the co-location argument. Co-location refers to the government’s (or rather the Liaison Office’s) preferred solution to the question where passengers on the express rail link will go through passport and immigration control. Two floors of the station in Kowloon will become part of China for legal purposes, as will the inside of the trains, which is bad news if you were hoping for decent coffee.

More seriously it means there will be a permanent population of mainland officials exercising the powers to which they are accustomed on the mainland, located in the heart of Kowloon.

Many Hong Kong lawyers take the view that this plan is a clear violation of the Basic Law, our mini-constitution, which states quite explicitly that mainland laws, with a few named exceptions, will not apply in Hong Kong.

Supporters of the plan say that decisions of the National People’s Congress Standing Committee have the status of laws, and being laws of China they over-ride laws which are merely laws of Hong Kong. So you colonial subjects can suck it up and stop complaining.

Ms Lam has not been much involved in this discussion but she waded in the other day in response to a formal statement from senior members of the Bar Association. who complained that the proposed arrangement was a serious erosion of the rule of law.

express rail terminus construction

West Kowloon Terminus of Guangzhou-Shenzhen-Hong Kong Express Rail Link. File photo: In-Media.

This was a tackle of the kind once associated with Norman Hunter: never mind the ball; get the man.

The Bar Association, said Ms Lam, was elitist. Why elitism should be regarded as a weakness in this context she did not say. Presumably elitism does not impair legal reasoning, so this was not a very relevant comment.

But it invited the rejoinder, which was not slow in arriving at those parts of the internet where critics of the government gather, that Ms Lam was hardly in a position to criticize elitism in others. One of her less prestigious claims to fame is that when running for selection she turned out to so addicted to chauffeur-driven travel that she could not get through an MTR turnstile without help.

Ms Lam’s other beef with the Bar was that they were “showing contempt for the mainland legal system”. This is another non-argument. Someone who feels contempt for the mainland legal system – me for instance – is not thereby precluded from arguing that some action is legal or illegal.

Of course if you take the most depressing view of the mainland legal system – that the law is whatever the Party thinks it is at the time – then contempt may perhaps be justified. Co-location is effortlessly legalized. But that is not a legal system at all.

It has been interesting to watch the two competing views of legal matters generally in the last few months, because the contending parties have switched sides.

Six months ago pro-China commentators were emphasizing the full and unrestricted power of the mainland government in Hong Kong, while more localist writers pleaded for respect for the limitations specified in the Basic Law, the Joint Declaration and other scraps of paper.

statue of justice court

Photo: Court of Final Appeal.

Now local lawyers are complaining that the Beijing government is all over us, dabbling in everything, and pro-China commentators argue that there are limits, and those limits are being observed.

The other day, for example, the China Daily had a piece by someone called Xiao Ping (a pseudonym. I suppose, selected by an admirer of the late Deng) pointing out at some length that “overall jurisdiction” and “a high degree of autonomy” are not mutually exclusive, which I thought was my line.

Mr Xiao (or Ping) goes on to argue that it is misleading for people to write as if Hong Kong was to be entirely autonomous in everything except defence and foreign affairs. He points out that the central government has the right to appoint the Chief Executive and the NPC has the right to interpret the Basic Law.

This is true. And if the central government confined itself to such matters we would not be having this argument. The fact is that there is a short list of officials who need appointment by the central government, but the Liaison Office does not confine its meddling to those posts.

Indeed every time a CE forms a new cabinet we get two stories. One states that X and Y have been offered posts and refused. The other states that W and Z were selected and agreed to do the job, but their appointments were vetoed by the Liaison Office.

Well it would be surprising if I completely agreed with Mr Xiao, whoever he is, and the constitutional arguments will no doubt continue. I am less happy with his conclusion, which appears to be some kind of threat: “As for those spreading lies about overall jurisdiction and high degree of autonomy, they will get burned if they don’t stop playing with fire now.”

What is that supposed to mean, one wonders? Something like it is a common trope in pro-Beijing writing. It seems that Junius Ho is not the only Hong Kong person in whom the contemplation of the glories of communism awakens an inner thug. In the continuing search of a harmonious society, could we not all agree at least to refrain from threats of violence?

Cause for concern: The law according to Carrie Lam