Recent Notes from Hong Kong

Earlier this month I spent a few days in Hong Kong, on my way back from Europe. Hong Kong was my home for 6 years – before, during and after the 1997 Handover – and I have continued to visit on a regular basis ever since. While I didn’t directly witness any of the latest clashes between pro-democracy campaigners and the police, I did see (and hear) the knock-on effects of the past 6 months. I also spoke to a range of people living and working in the city – from local residents to long-term expats; from small business owners to entrepreneurs; from corporate employees to public servants; from teenagers to senior citizens. Whatever their particular views on recent events, their one common hope is that the situation can be resolved peacefully, and soon.

“Maze of Today” by Wu Guanzhong (2007) – Image sourced from China Online Museum website*

The trigger for the current protests was a proposed extradition law between the Hong Kong SAR and the rest of the PRC (as well as Taiwan and Macau). The bill was highly contentious, given the very different legal systems between Hong Kong and the Mainland. Serious concerns were expressed by the business sector, the legal profession and the general public. These concerns were given wider voice by the hundreds of thousands of ordinary people who joined the first of the peaceful mass marches at the start of the summer. Since then, nearly every weekend (and at times during the week) there has been direct action in the form of marches, strikes and occupations – sometimes leading to street battles between police and protestors, images of which have been seen around the world. These events have been accompanied by allegations of police brutality, the alleged use of agents provocateurs, and suggestions that the protestors are either terrorists, traitors or a threat to society.

On one level, Hong Kong continues to operate normally (although getting into the international airport is a little trickier since it was the target of so-called “stress testing” of the public roads and transport system). On the other hand, it certainly feels quieter than normal, and visitor numbers are down – as much as 40% overall on one measure, with a 90% decline in visitors from the Mainland. (My flight from Europe was barely half full.)

With the increased protest activity at weekends, public transport can be tricky. Some subway stations are suddenly closed without much warning from Friday evenings onward, and the express train from Central to the airport bi-passes the usual intermediate stops. On the Sunday I was there, there had been a mass gathering in Central, and access to the nearest subway station (for the local train service back to Kowloon) was closed, so there was an orderly queue of several hundred metres as people waited for the Star Ferry – many of the passengers dressed in black t-shirts, the unofficial uniform of the protest movement.

Given the recent bans on marches and gatherings in public places (notwithstanding Hong Kong’s right to peaceful assembly) a strange phenomenon has emerged. Each night, at around 10.30pm, local residents open their apartment windows and start chanting slogans associated with the pro-democracy movement. It is both eerie and extremely moving.

This nightly display certainly evokes the sense that no-one wants to see complete chaos or a violent end to the protests, so they chant in hope that a peaceful solution can be found. Otherwise, hope will give rise to despair, and with it the slow, painful decline of Hong Kong as a global city – a multi-cultural, international hub for trade, commerce, finance, ideas and innovation that combines notions of east and west, new and old, pragmatism and spiritualism.

The protestors have issued a set of five key demands. One relates to scrapping the extradition bill, which has now been withdrawn by the Hong Kong Chief Executive. Three relate to the protests themselves – removal of the term “rioters” to label the protestors; an independent investigation into the police response and alleged brutality (and even into police in-action when protestors were attacked by counter-demonstrators with seeming impunity); and an amnesty for all protestors who have been arrested to date.

The fifth demand, Universal Suffrage in direct elections for both the Legislative Council (Hong Kong’s Parliament) and the Chief Executive, is a lingering issue from the Umbrella campaign of 2014 (when large parts of the city were occupied in protest at Beijing’s decision to “defer” one person one vote). It’s probably even more contentious than the withdrawal of the extradition bill. To summarise: the Basic Law is Hong Kong’s Constitution. It is supposed to enshrine the city’s pre-existing common law systems for a minimum of 50 years after the Handover. Under the “One Country, Two Systems” regime, designed to govern Hong Kong’s legal, political and economic relationships with the Mainland, the people of Hong Kong were assured that their way of life would continue as before after 1997.

Article 45 of the Basic Law, states that:

“The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.”

The above has to be read in conjunction with Article 15 (Beijing directly appoints the Chief Executive), and Annex 1 (defines the candidate selection and election process – which has been revised in recent years).

The challenge is that the Central government believes it has to keep control over both the candidate nomination process, and the membership of the Election Committee (election college). On current evidence, the people of Hong Kong are unlikely to get to directly elect their own Chief Executive, nor nominate the candidates of their own choosing. (And the Legislative Council will continue to comprise members who represent “functional constituencies” – elected representatives voted in by their peer groups from various vested interests.) Even if they did directly vote for the Chief Executive of their choosing, Beijing would reserve the right not to confirm them in office, and would appoint their own candidate instead.

Of course, it’s not that Hong Kong was particularly democratic under colonial rule – the Governor was technically appointed by the British Monarch (on the advice and recommendation of the British Foreign Secretary), and acted as the Crown’s direct representative.

On another level, the model for the Election Committee is something like the US Electoral College that formally elects the President, based on the delegates elected by each State. This process was seen as “a compromise between election of the President by a vote in Congress and election of the President by a popular vote of qualified citizens”.

Finally, I was given an interesting interpretation of “One Country, Two Systems” by an elderly gentleman I spoke to on the MTR one day. “Where are you from?” he asked. “Australia” I replied. “Ah, near New Zealand. Same country.”

* My reason for choosing the above picture of Hong Kong by Wu Guanzhong to illustrate this blog is two-fold:

First, the painting is called “Maze of Today”, rather an apt title for the current state of affairs. Second, while I was working as a publisher in Hong Kong in the 1990s, my company licensed another Hong Kong picture by Wu for the cover of an introductory book on the law of the Hong Kong SAR. The first edition was issued in 1996, with a second edition in 2001 – and it still appears to be on the Hong Kong University reading list for law students, and cited in other law books as recently as this year.

Next week: Startup Vic’s Impact Pitch Night

 

Brexit Blues

Reading the latest coverage of the Brexit farce combined with the inter-related Conservative leadership contest, I am reminded of Oscar Wilde’s description of fox hunting:

“The unspeakable in pursuit of the uneatable”

Whichever candidate wins the Tory leadership race and, as a consequence, becomes the next UK Prime Minister, they will inevitably fail to deliver a satisfactory Brexit solution, simply because there is no consensus position.

But the underlying cause for this impasse is a series of flawed processes:

First, the promise made by previous Prime Minister David Cameron to hold a referendum on EU membership was flawed, if not highly disingenuous – because from the start, there were no terms of reference. Cameron chose to make it part of his manifesto pledge ahead of the 2015 general election campaign. Even at the time it felt like a desperate ploy to appease the mainly right-wing and Eurosceptic faction of the Conservative party. Despite being generally in favour of the UK remaining within the EU (but with “looser ties”), Cameron probably never expected that he would have to deliver on his referendum promise let alone lead the Brexit negotiations. Behind in the polls, the Tories were expected to lose the election. Instead, they won, but with a much reduced majority – which should have been the first warning sign that all was not going to be plain sailing with Cameron’s EU referendum pledge.

Second, the referendum question put to the electorate in 2016 was itself flawed. Cameron had originally talked about renegotiating the UK’s terms of EU membership, much like Margaret Thatcher had done with some considerable success in the 1980s. There was certainly no mention at all in Cameron’s January 2013 speech of a “No-deal Brexit”. However, the referendum question put to the voters was a stark, binary choice between “Remain” or “Leave”. As some have argued, the design of the referendum should have been enough to render it invalid: both because the voters were not given enough reliable data upon which to make an informed decision; and because there was no explanation or guidance as to what type of “Leave” (or “Remain”) outcome the government and Parliament would be obliged or expected to negotiate and implement. Simply put, the people did not and could not know what they were actually voting for (or against). I am not suggesting that the voters were ignorant, rather they were largely ill- or under-informed (although some would argue they were actually misinformed).

Third, the respective Leave and Remain campaigns in the 2016 referendum were both equally flawed. The Leave campaign was totally silent on their proposed terms of withdrawal (I certainly don’t recall the terms “Hard Brexit” or “No-deal Brexit” being used), and their “policy” was predicated on the magic number of “£350m a week“. And the Remain campaign failed to galvanize bipartisan support, and was totally hindered by the Labour leadership’s equivocation and ambivalence towards the EU (which has only deepened as Jeremy Corbyn refuses to confirm what his policy actually is).

Finally, the Parliamentary process to implement Brexit was flawed from the start. Cameron jumped ship and ending up passing the poisoned chalice to Theresa May. The latter had supported Remain, but now had to lead the UK’s withdrawal from the EU. However, rather than trying to build consensus and broker a truly bipartisan solution (this is not, after all, a simple, one-dimensional party political issue), May proved to be a stubborn, inflexible and thick-skinned operator. Now, there are threats to prorogue Parliament in the event that MPs vote against a No-Deal or Hard Brexit, if a negotiated agreement cannot be achieved by the October 31 deadline. May’s negotiation tactics have only resulted in deeply entrenched and highly polarised positions, while she ended up painting herself into a corner. Good luck to her successor, because if nothing else, Brexit is casting division and national malaise across the UK.

Next week: Pitch X’s Winter Solstice

 

Separating the Truth from the Facts

There was almost a look of horror on Rudy Giuliani‘s face when he realised what he had done in saying “Truth isn’t truth”. His reputation as New York Mayor at its most challenging time, not to say his career as a lawyer, may have been completely undone by this latest pronouncement on behalf of an administration that has increasing difficulty in separating facts from fiction (or “real fakes” from mere “fabrication”?).

“Doh!” Photo Credit: AFP/Getty Images/Saul Loeb

In our post-truth age, one where we have had to accommodate “alternative facts” and “fake news”, language, if not the truth, is usually the first casualty in this war of, and on words themselves.

If one was being charitable, it could be argued that the struggle between “facts” and “truth” is like the difference between structuralism and post-structuralism: so, in the former, words have a finite meaning when used in a particular way or structure; whereas in the latter, the same words can have different meanings depending on the context of the audience.

But rather than critical theory, I think we are actually dealing with a phenomenon I first encountered about 20 years ago, while working in China. A report in the China Daily regarding a constitutional matter that was before the courts said that in order to fully understand the issue, it was “important to separate the truth from the facts…”.

Next week: The party’s over

 

Revolving Doors At The Lodge

Since his unceremonious dumping as leader by his colleagues in the Parliamentary Liberal Party, former Prime Minister Malcolm Turnbull must be wondering why the party that spat him out twice (despite benefiting from his personal donations) accepted his membership in the first place. So adamant were his conservative enemies that Turnbull was “not one of us”, they were willing to sacrifice not only Turnbull’s status as preferred Prime Minister, but also his popular deputy, Julie Bishop, and their own preferred leadership candidate, Peter Dutton.

Turnbull’s farewell speech – image sourced from The Australian

All of which suggests Australian democracy (or at least, the version played out by our political parties) is seriously damaged, if not actually broken.

Turnbull is the fourth sitting Prime Minister to be dumped by his or her own party in less than 10 years (and let’s not forget he himself ousted his predecessor). This latest incident suggests that the problem is not with the electoral system, but with the party system that controls the management and exercise of political power – and with scant regard for the voters who directly elect their constituency representatives.

Here’s why I think party politics are the root cause of Australia’s current leadership malaise:

1. No legal or constitutional basis

Quite simply, political parties are neither mentioned in the Constitution, nor formally defined in any Act of Parliament. Their role in our democracy is entirely by custom and convention – in a way, we tolerate them as a “necessary evil”, because we are led to believe that Parliament cannot function without them. At best, Parliamentary parties operate under a license, one which should not be seen as a right, but as a privilege. And like all such licenses, this privilege should be subject to being revoked at the will of those who granted it – the electorate.

2. If our political parties were treated like corporations….

…. they would likely be hauled before the ACCC every time they broke an electoral promise, for misleading, unconscionable or deceptive conduct. Sure, circumstances can change once governments are elected – but should it be a requirement for governments to re-establish their political mandate before they make a significant u-turn? In fact, political parties are exempt from a number of legal provisions that apply to companies. Political parties may have a paying membership that determines policy, candidate selection and other procedural matters – but they are not directly answerable to the customers they purport to serve: the general electorate.

3. Our elected representatives are not even accountable to their electorates….

…. except at election time. The notion that voters elect parties into power needs to change. Voters elect individual candidates who stand for office. Even if a candidate aligns with a specific political party, there is no binding obligation on them to sit as a member of that party once they are elected. By switching party allegiance, elected representatives who cross the floor are being disrespectful of the same (flawed) party system that saw them selected to stand for election. But they are also disregarding the wishes of their electorate, who may have been convinced or persuaded to vote for them on the basis of their stated party allegiance.

4. Voters are increasingly excluded from choosing their Prime Ministers (and their governments)

Of course, we do not directly elect our Prime Ministers. The parliamentary convention is that the elected member who commands a majority in the house of representatives is invited by the Governor General to form government. The parliamentary custom and practice is that the leader of the parliamentary party that holds most seats becomes the de facto leader of the government, and hence Prime Minister. Increasingly, the largest party bloc may not command a majority. So formal and informal coalitions have to be formed, often between competing political parties, to enable minority government to function. Such alliances may be politically expedient, but they cannot be said to represent the will of the people, if we assume that the electorate is expected to vote along formal party lines. Besides, if the party system is to retain any credibility, shouldn’t voters be entitled to expect that the leaders of the parliamentary parties, which they have (indirectly) elected to lead that party, should continue to lead unless and until they have been voted out by that same electorate?

5. Voters are not even consulted when Prime Ministers are rolled mid-term

Since Prime Ministers are not directly elected, voters have also been excluded from the process when political parties choose to roll their own Prime Minister (and effectively change the government without having to call a general election). Do the party factions who seek a leadership change bother to directly consult their paid-up local party members, or their own party voters, or the local constituents they purport to represent (regardless of which way they voted at the previous election)? To me, this represents a huge fraud on the population – and the party system is at the heart of this “madness”.

6. The failure of (party) political leadership

During the 2013 general election I commented on the lack of public support for the then leaders of both major political parties – part of what I saw as a broader failure of leadership across multiple public institutions that claim to represent our interests. Regardless of their party allegiances, the electorate seems increasingly disillusioned, if not repelled, by the party back-stabbing, treachery and disloyalty. The result is, we are poorly served by our elected representatives and the governments they form along supposed party lines.

7. Politics is not binary….

…. but the party system forces us to think this way. On most party-driven policy questions, the answer cannot be reduced to “for” and “against” – there are just too many shades of grey. This is especially true of the key policy area that seems to have brought down the last four Prime Ministers – climate change, energy and the environment.

First, Kevin Rudd abandoned the ETS, a decision which he later regretted. He claimed that the main actors in his own demise were the ones who agitated for this policy u-turn.

Second, Julia Gillard avowed that she would not introduce a carbon tax – and the electorate never forgave her for her later u-turn, resulting in her being dumped by Rudd.

Third, Malcolm Turnbull was unhappy at the direction Tony Abbot was taking the Liberal Party on climate change.

Fourth, Turnbull came a cropper on energy policy (linked to climate change), even though he had decided to capitulate to the right-wing views in his own government and Party.

You have to think that something as important as climate change demands a bipartisan solution – but the party system just keeps getting in the way.

8. “Power, corruption & lies”

Finally, in recent years we have seen a litany of corruption and other cases involving our major (and some minor) parties, and the factions within – a further cause of the lack of public trust and respect for parties, politicians and power-brokers. Add to this mix the relatively small numbers of directly paid-up members of political parties, issues of party funding and campaign donations, the party stuff-ups on disqualification due to dual citizenship, and the ongoing saga of MP’s expenses, a key conclusion is that the political party system is not conducive to modern democracy or the electoral, parliamentary and government processes. And while it is sometimes said that we get the type of governments we deserve, I don’t think any member of the general electorate would say they voted for the current situation.

Next week: Separating the Truth from the Facts