"Love sounds the alarm and fear is a flying"

July 14, 2020 08:42
Photo: RTHK

What is the current situation in Hong Kong? This is the question being posed to me by friends and relatives all over the world.

Virtually everything in life is a subjective perspective. To see Hong Kong through my eyes, first you have to understand from where I stand.

As a practising barrister, I am a child of the liberal common law which provides the foundations of an enlightened civil society in which the dignity and basic human rights of individuals are both respected and protected.

The concept of universal suffrage and one man one vote democracy has little to no meaning unless everyone within a legal jurisdiction is subject to the same law, without discrimination.

Critical to the common law is the principle that the interests of a minority must be protected against dictatorship by the majority.

Now let me cast my eyes over what I see in this Special Administrative Region of the People’s Republic of China.

Overnight, without participation by what passes for Hong Kong’s government, or consultation with any genuinely representative public organ, a deformed package of vaguely phrased, invasive and draconian laws has been bolted onto the body politic.

The conceit of this package is diametrically alien to the principles that inform Hong Kong’s indigenous legal system.

It is akin to sticking an ugly great carbuncle on the Venus de Milo.

I cite the most egregious examples to make the point.

The common law demands certainty so that the citizen knows where the boundaries of lawful behaviour are. This package has no such definition.

The administration determines, on an ad hoc basis, what constitutes a crime and then selects the tribunal to hear the case.

The government’s legal advisor decides whether or not trial shall be by a jury of one’s peers or a judge of the administration’s choice.

As Lord Devlin said, the jury is the lamp of freedom.

Stumbling, unseeing, through labyrinthine corridors of meaningless twaddle is not what is meant by ‘Justice is blind’.

The common law grants an accused person a basic right to Bail, absent evidence of a risk of flight or threat to the safety of a witness. This is specifically reversed.

Defence lawyers have lost legal professional privilege.

Public Security officials – I use the generic term to embrace police and those staffing the Office for Safeguarding National Security – can enter private premises without a warrant and seize any property without restraint.

Private communications, whether by electronic device or face to face, can be tapped or eavesdropped upon without judicial supervision. The judiciary no longer protects a private citizen’s privacy.

Only those judges that the Chief Executive considers sufficiently ‘patriotic’ will be appointed to hear cases brought under the National Security Laws. What happened to the separation of powers?

At a stroke, the judiciary, Hong Kong’s priceless jewel in the crown, is to be compromised.

There are myriad more illustrations of the incompatibility of ‘the package’ but these are more than sufficient to highlight the significance of the change.

Fortuitously, I happened to be reading a book about the members of the French resistance who risked their and their families’ lives by operating clandestinely against the Nazi invaders during WWII.

Imagine how the citizens of Paris must have felt, waking up to find the Sicherdienst, better known as the Gestapo, setting up shop at 84 Rue Foch and the HQ of the Wehrmacht, the German Army, occupying L’Hotel Meurice.

Do hotels have a particular attraction for autocratic regimes I wonder?

Patriotic French men and women also had to live with the fear that they would be betrayed by their countrymen who collaborated with the fascists.

Apologists for the appeasers argued that the Vichy government under Marshall Petain enabled almost half France to enjoy a semblance of freedom but there was a brutal reckoning at war’s end.

It was not long before the vernacular of the French collaborators soon became indistinguishable from that of their occupiers.

When I hear or read the utterances of Hong Kong officials protesting that all the SAR’s freedoms under the Two Systems remain inviolate, I am forced to question their integrity or their sanity.

The genius of Deng Xiaoping was not just that he recognised the incompatibility of the two legal systems but that he demonstrated China’s power in accommodating Hong Kong’s separate legal characteristics without impugning the central government’s system.

The clumsy miasma that goes under the sobriquet of the National Security Law is divisive rather than inclusive, manifesting draftsmanship that is ignorant of its destructive potential.

And so to the question “what is the current situation in Hong Kong?” I reply in the words of T.S. Eliot:

“I will show you fear in a handful of dust.”

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Queen's Counsel