The "suspension" of the Extradition Bill, which will likely lapse in July 2020, is not the end of an increasing erosion of HK's autonomy. With a rubber-stamp legislature, the only thing that now prevents draconian legislation is massive public pressure. Mrs Lam has irrevocably lost the public trust. Beijing will hold her accountable for the loss of control last week, after a suitable interval to disconnect the issues, but this will not prevent the increasing erosion of HK's autonomy.

Why Carrie Lam must go
16 June 2019

Who said this?

"we have decided, after detailed deliberations, to defer the resumption of the second reading of the Bill and to step up our efforts to explain the amendments to the community in the coming days."

No, that wasn't HK Chief Executive Carrie Lam Cheng Yuet Ngor yesterday. It was the first Chief Executive Tung Chee Hwa on 7-Jul-2003, deferring proposals for Article 23 National Security legislation, after a massive and peaceful protest on 1-Jul-2003, and after Liberal Party leader James Tien Pei Chun resigned from the Executive Council on 6-Jul-2003.

On 3-4-Jul-2003, Tien had made a flying visit to Beijing to check that his 8-legislator party would not face reprisals if they called for a 6-month delay. The bill was due to have its second reading on 9-Jul-2003, and protestors had planned to surround the LegCo building (then in Central, where the Court of Final Appeal now sits). That showdown was avoided with 2 days to spare and without violence. As readers will know, the second reading of that bill never came, and the bill lapsed at the end of the Legislative Council term in Jul-2004.

History repeating

Fast-forward 16 years to the current controversy over the Extradition Bill, which threatens to drive a tank through the legal firewall that separates the "Two Systems" of the HKSAR and the mainland. Yesterday, Carrie Lam announced a "suspension" of the bill, stating:

"the Government has decided to suspend the legislative amendment exercise, restart our communication with all sectors of society, do more explanation work and listen to different views of society."

There are striking similarities to the cases of the National Security and the Extradition bills. In both cases, they were not stopped by the turnout of hundreds of thousands of people in peaceful marches on sweltering summer days defending HK's autonomy and way of life, nor by the objections of the legal community, nor by the objections of foreign governments upon whose recognition many of the "Special" characteristics of the SAR depend. Both Chief Executives were willing to press ahead against all those opinions.

Mr Tung only stopped because of the withdrawal of the Liberal Party's near-term support for the bill. He resigned in Mar-2005, citing health reasons, although the old geezer is alive and kicking 14 years later and regularly interjects in HK policies such as housing and the Lantau Mega-reclamation proposal.

Mrs Lam yesterday admitted that she only stopped because on Wednesday, when LegCo had been due to commence the second reading, the protests turned violent as some protesters tried to invade the Legislative Council precinct, including its official "protest zone" which, ironically, had been closed because of the pending protest. The Police then cleared surrounding occupied streets with a moving wave of CS gas, baton rounds, bean bag shots and pepper balls, in what we regard as an excessive use of force against unarmed and largely peaceful protestors. For Mrs Lam, who was Chief Secretary during the months-long 2014 Occupy movement, there was to be no Occupy 2.0, at all costs.

In response to a CNN question on why she had taken so long to back down on the bill, she said (at 46:23 in the video):

“last Sunday, we had a large number of people coming out. It was very peaceful. It was generally orderly. So this is part of Hong Kong. We do have that sort of protest from time to time. But it is on Wednesday that that sort of polarisation views in society relating to this bill has given rise to violence, very serious confrontations, people being hurt, police on the ground sort of being forced to take some of those measures. That’s why I come to the view, I told myself, that I need to do something decisively, to address two issues – how could I restore as fast as possible the calm in society, and how could I avoid any more law enforcement officers and ordinary citizens being injured?”

Put simply, if Wednesday's protests had been peaceful and LegCo was operating (legislators could have been escorted in on foot), then she would have rammed the bill through what is now a majority rubber-stamp legislature. It was only the violence that made her stop. That's a shocking admission in itself. She shrugs off enormous protests as just "part of Hong Kong". The whole tone of her remarks yesterday was that there was nothing wrong with the bill, it was merely a failure of explanation, and that if we weren't all so stupid then we would agree with her, but she wouldn't have stopped if we had peacefully disagreed.

Mr Tung's administration used the same failure-to-understand messaging about the National Security bill in 2003. In a TVB interview on Wednesday, Mrs Lam compounded her insult to the intelligence of thousands of lawyers and the majority of the population by comparing the objectors to a spoilt son who doesn't know what is good for him.

The rubber stamp still needs public consent

Let's be clear: the ability to propose and pass unpopular legislation derives entirely from the lack of a popularly-elected legislature or chief executive. Only 35 of the 70 seats are elected by geographical constituencies, and even then, using a defective proportional representation system which ensures that pro-democracy candidates will never get more than about 60% of the 35 seats and will be splintered into small parties. A handful of the Functional Constituencies including accounting, legal, education and I.T. also have broad enough professional electorates to elect pro-democracy candidates. So this bill would not have made any progress without the small-circle FCs who place their business interests and relationships with Beijing ahead of public opinion.

If HK did not tolerate free speech and public assembly then rubber-stamping legislation would work as it does in the PRC, North Korea and other authoritarian states. But when you have a public freedom to speak, debate and protest, then a rubber stamp is not sufficient - you must also correctly gauge public opinion, and gain the public's trust and consent for your proposals. The neutered legislature won't stop you, but the public can.

Dodgy data

The vast majority of the HK population correctly perceives the mainland judicial system as unreliable. In a randomised Cantonese telephone poll conducted by the University of Hong Kong in late May-2019, on the question of whether mainland China provides fair trials, those who agreed were outnumbered by 4.2 to 1 (59% v 14%). That was the fundamental reason for public opposition to the bill - not a lack of understanding.

The Government dressed up the proposals by excluding certain (but not all) white-collar crimes at the request of nervous business tycoons, but that just underlined that the business community doesn't trust the mainland courts either - and these same tycoons have to deal with the mainland system, so they should know. Then the Government narrowed the scope from offences with a maximum term of at least 3 years, to those with a maximum of at least 7 years. That just means that those who are unfairly convicted will face longer terms - it doesn't change the unfairness.

In desperation, Secretary for Security John Lee ka Chiu extracted figures from the World Economic Forum's Global Competitiveness Report, in which China ranks 45th out of 145 for judicial independence with a score of 4.5 (out of 7), better than Spain on 4.1 and South Korea on 4.0, he said. So what's the problem then? What he failed to mention is that this is not the opinion of the WEF, it is an in-country "Executive Opinion Survey" conducted by different bodies in each country. In China's case, the survey is conducted either by the National Development and Reform Commission or Tianjin University of Finance and Economics. What you are seeing is the opinion of senior mainland executives, many of whom are Communist Party members running state-controlled companies. What did you expect them to say? We are surprised that China didn't score higher. North Korea, if it had participated, would probably have topped the rankings.

No amount of window-dressing on this bill can change the unfairness of the mainland judicial system. Historic documentation clearly shows that excluding it from the scope of extradition legislation was not a loophole or an error, it was essential to the One Country Two Systems model. Macau, with its Portuguese-inherited civil-law system, and Taiwan, with its own, could have been dealt with by separate arrangements, but this was politically unacceptable, and once Beijing got wind of the bill (assuming they didn't propose it), they jumped in with gusto - at last, they could assert their jurisdiction over HK via the back door.

Mrs Lam is now on borrowed time

The current 4-year term of LegCo expires in July 2020, and with it, any outstanding bills will lapse. It would be political suicide for any Chief Executive to try to resume the second reading of the Extradition Bill between now and then, so we can be fairly confident that the bill will lapse in July 2020 and then rejoin the National Security bill on the long-term to-do list.

But that leaves us with one loose end: Mrs Lam. Her stubborn insistence that the bill was right and should not be withdrawn shows either willful ignorance of the damage it would do to HK's autonomy, or that her masters in Beijing will not let her drop it, or both. To drop it would be to admit that they are fallible, and an authoritarian leadership can never show weakness. To Beijing, the bill was correct and they need to be able to extradite suspects to face the shoddy mainland justice system.

But privately, Beijing will hold her responsible for leading them down this path and triggering huge public protests, which despite the great firewall of China, will become known to mainland citizens, not least because they are increasingly free to travel. Since the shock of 2003, Beijing's overriding instruction has been to prevent large public protests, for fear that it could inspire protests in the mainland. It's why both Mr Tung and Leung Chun Ying did not see a second term of office, and nor will she.

If she were a stock, we would recommend shorting Mrs Lam with a target price of zero. Call it the Carrie trade. She has irrevocably lost the public's trust. Her 5-year term of office runs to 30-Jun-2022 but she has proven herself as tone-deaf as Mr Tung and a second term is out of the question. Her minders in Beijing, while expressing public support for now, have clearly lined her up for the chop by distancing themselves from the proposal in recent days, while she refuses to confirm that she crossed into the mainland to visit her immediate boss Vice Premier Han Zheng in Shenzhen on Friday night (intra-day absences of the CE are not gazetted).

To avoid loss of face for both Beijing and Mrs Lam, there will be a decent interval before she excuses herself, but go she must, perhaps to spend more time with her family, something that she claimed she wanted before her god called on her to run (and who knew that her god speaks mandarin?).

Erosion of the Special in SAR

Mrs Lam's now-inevitable departure won't resolve HK's problems though. Under Beijing's increasingly hands-on approach, it is only a matter of time before the next attack on HK's freedoms - perhaps with the thought-crimes National Anthem Bill, which will soon make it an offence to satirise the national anthem or not to show respect when it is played, whether the person actually respects it or not.

The more that the PRC Government interferes with the autonomy promised to Hong Kong in the 1984 Joint Declaration, the more likely it becomes that foreign governments, most likely led by the US, will withdraw their recognition of Hong Kong as a separate customs, tax and legal territory within China and all the privileges that go with it. That would be severely damaging to Hong Kong’s economy, and at that point, having lost the benefits, the PRC Government would likely accelerate its destruction of the boundary between the “Two Systems”. Put simply, Hong Kong is unlikely to remain a Special Administrative Region if the rest of the world no longer regards it as special.

With a majority rubber-stamp legislature, the public cannot take their freedoms for granted. Like muscle tissue, they must exercise those freedoms or lose them, and that is what they did last Sunday and Wednesday. Today's hopefully-peaceful march will be one to celebrate that those freedoms are now the only thing that can prevent draconian legislation, and that is why we will join. The price of freedom is eternal vigilance.

©, 2019

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