In Hong Kong absolute power absolutely corrupts!
Updated: May 29, 2020
Power corrupts, absolute power absolutely corrupts! Hong Kong is being absolutely corrupted by CCPvirus!
The last British Governer of Hong Kong was Chris Patten.
Question: "Should Britain have held a sovereignty referendum?"
Chris Patten: The sanest question on the issue of the handover of sovereignty of HK from Britain to China was asked by a well dressed HK Chinese man inside a HK mental institution who asked "is it fair for Britain, as a great democracy, to hand over sovereignty of HK to the last great authoritarian power, China, without first consulting HK people?"
There was no referendum in HK by the British on the question of sovereignty. Clearly this was the corruption of the British!
Wikipedia definition of "corruption"
Corruption is a form of dishonesty or criminal offense undertaken by a person or organization entrusted with a position of authority, to acquire illicit benefit or abuse power for one's private gain. Corruption may include many activities including bribery and embezzlement, though it may also involve practices that are legal in many countries. Political corruption occurs when an office-holder or other governmental employee acts in an official capacity for personal gain. Corruption is most commonplace in kleptocracies, oligarchies, narco-states and mafia states.
For a broader view of the absolutely corrupt practices of China's one-party ruler the Chinese Communist Party (CCP) please see our blog Zhang Xuezhong's open letter on China's Constitution.
Some of We the People of HK's thoughts on absolute power absolutely corrupts includes:
1.0 The Joint Declaration is Hong Kong's Constitution
Wikipedia (bold format added):
"A constitution is an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity, and commonly determine how that entity is to be governed...A treaty which establishes an international organization is also its constitution, in that it would define how that organization is constituted. Within states, a constitution defines the principles upon which the state is based, the procedure in which laws are made and by whom. Some constitutions, especially codified constitutions, also act as limiters of state power, by establishing lines which a state's rulers cannot cross, such as fundamental rights."
The relevant Treaty for the Hong Kong Special Administrative Region (HKSAR) is the 1984 Sino-British Joint Declaration on the Question of Hong Kong (hereafter referred to as the "Joint Declaration"). This treaty was signed by both China and Britain and lodged by both with the United Nations and remains an international binding Treaty for 50 years until 1 July 2047.
The Joint Declaration constitutes the organization of the HKSAR, therefore it is the Constitution. It is the SAR's founding legal document.
The Basic Law is therefore neither a 'mini-Constitution' nor a Constitution, though CCP would have us believe that it is.
Similarly "One Country, Two Systems" (1C2S) is a policy initiative of the CCP and is not mentioned in the Joint Declaration. 1C2S could even be considered a corruption of the Joint Declaration!
In the Joint Declaration Article 3.12 (12) (bold format added) "The above-stated basic policies of the People's Republic of China regarding Hong Kong and the elaboration of them in Annex I to this Joint Declaration will be stipulated, in a Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, by the National People's Congress [NPC] of the People's Republic of China, and they will remain unchanged for 50 years."
Hong Kong's (HK) Basic Law is a document written by China's NPC, which is controlled by the CCP, who sometimes refer to the Basic Law as a mini-Constitution or Constitution.
There is NO mention inside the Joint Declaration that the Basic Law is to be the SAR's Constitution or even its 'mini-Constitution'.
The Joint Declaration is HK's Constitution: the Basic Law is NOT HK's Constitution.
A read of Chinese Constitutional scholar Zhang Xuezhong's open letter on China's Constitution provides clear evidence that China's Constitution and the NPC have been compromised by the CCP to the point where the Constitution and the NPC is no longer functioning in a manner which is supportive of China's role in the Joint Declaration Treaty. This exact same play is being used in HK by CCP.
2.0 Because China is currently in breach of HK's Constitution the HK government is illegitimate and CAN NOT operate!
The founding treaty, the Constitution, for the Hong Kong Special Administrative Region (HKSAR) is the Joint Declaration (see above).
China is in breach of HK's Constitution. China, under the ruling Chinese Communist Party's (CCP) is currently in anticipatory breach of the Joint Declaration - see our blog Petition "Referendum Solution for Hong Kong".
What exactly are the breach(es)? There have been numerous breaches over the years and it is up to lawyers to come up with a list and evidence.
For example; SCMP 4 September 2019 CCP announced “The Hong Kong government, including the executive, legislative and judiciary branches, as well as all sectors of society must take ‘bridling turmoil and curbing violence’ as the city’s most pressing task and the overwhelming priority,” Hong Kong and Macau Affairs Office (HKMAO) spokesman Yang Guang said on Tuesday. “Especially to those key violent criminals and their backstage masterminds, organisers and agitators, [we] must show no mercy and pursue till the end.”
Under CCP today there is NO separation of powers between the Legislative, Executive and the independent Judiciary. This is reflected in China in the authoritarian relationship of the CCP towards the NPC and all Chinese citizens; this is in turn reflected in what CCP is doing in HK.
Because there is a breach by China of HK's Constitution there can NOT be any legally operating Legislative Council, Hong Kong government, Judiciary, Police, etc.
Having no legitimacy HK's Public Purse can NOT be used to fund an illegitimate HK government.
Business can NOT be legally conducted in HK. Commercial contracts, can not be agreed and entered into because there is NO legally functioning HK jurisdiction because Courts can not sit let alone pass judgements.
In context, CCP since 1949 has always controlled HK by threatening British attempts for democracy in its colony.
In 1971 China's UN Ambassador, without consulting HK people, scuppered the democratic rights of people in HK and Macau under the Declaration on the Granting of Independence to Colonial Countries and Peoples, Resolution 1514 (XV), 14 December 1960. There is an argument to be made here to the UN for HK's independence.
3.0 WTPOHK Solution: Referendum, Human Rights & Democracy are front & centre for the rule of law, HK government MUST be legitimate
The will of the majority of HK people is now for the resolution of the protesters' 5 demands.
Logically the first step is to ensure that the Constitution, the Joint Declaration, is being adhered to by both parties - being China and the British.
We The People of HK's solution is that a referendum which is then acted upon can negate the anticipatory breach by China and leave it with no effect, so the Joint Declaration can continue in principle ‘as amended’. Endorsing the referendum which is then acted upon would be the proper reaction of the British and Chinese governments as it would right the wrong, and correct and nullify the breach.
The Joint Declaration's first paragraph (bold format added): "The Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China have reviewed with satisfaction the friendly relations existing between the two Governments and peoples in recent years and agreed that a proper negotiated settlement of the question of Hong Kong, which is left over from the past, is conducive to the maintenance of the prosperity and stability of Hong Kong and to the further stengthening and development of the relations between the two countries on a new basis."
The key points in this first paragraph of HK's Constitution includes:
"..prosperity and stability of Hong Kong" are generally opposing sides of an equation and a balance must be struck. Without political and social stability there can be no long term maintenance of prosperity for HK. Therefore, despite their denials, the CCP HAS to either wipe out entire generations of HK people OR must come to the table and negotiate with all HK Stakeholders for stability in order to have prosperity both in HK and in China;
AND that it is not just about the two governments' wishes - it is ALSO about the wishes of the peoples of China and the UK!
Nobody bothered to ask the people of HK what they wanted back in the 1980's!! (see the video above of the interview of the last British Governer Chris Patten). Now HK people are demanding "5 demands, not one less"!
4.0 For there to be the rule of law UN human rights Treaties MUST be applied in HK
The will of the majority of HK people is now for the resolution of the protesters' 5 demands.
UN Universal Declaration of Human Rights Article 21.3 (bold format added) "The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures."
In the November 2019 District Council elections in HK the pro-democratic camp won control of 17 of 18 districts. This is the only universal and equal suffrage election currently held in the SAR; the Legislative Council and Chief Executive elections are NOT run according to UN Treaties.
HK has been gifted by barren rocks and a fragrant harbour - it's resources are HK people, their education, inventiveness, civil community and the rule of law. HK has no oil, minerals or other natural wealth.
Under the Joint Declaration HK as an international finance and trading centre MUST conform to legislation, policies and practices of all Treaties it has signed and ratified. If it does not then its rule of law does not support HK's Constitution nor it's status as an international finance and trading centre.
Specifically, at a minimum, HK MUST conform fully to the United Nations International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Currently HK does NOT conform to ICCPR nor to ICESCR. Thereore, all legislation, policies and practices must be reviewed and changed to conform with HK obligations under Treaties it has signed and ratified.
For example, the HK government is currently using legislation such as HK's Public Order Ordinance (POO), which does NOT comply with ICCPR, to illegally persecute and prosecute HK people. As reported by RTHK on 13 May 2020 UN experts urge HK to drop charges against 15 activists recently arrested using the POO (see our blog on the manipulation of legal statutes).
The Secretary of Justice is a political appointee. In most democracies a career Civil Servant, the Director of Public Prosecutions, is the final decision maker. In HK it is the Secretary of Justice who decides prosecutions - therefore all HK prosecutions are political prosecutions and persecutions (see article by Michael D Pendelton below).
There is also the key question of the HK's current special trade relationship with USA. CCP is NOT the only Stakeholder in HK!
Pepe and Jeremiah B.
Hong Kong’s ‘Father of Democracy’ arrested while mainland Chinese agencies flout the law
The arrest of leading pro-democracy figures in Hong Kong, especially Martin Lee QC, should give rise to the utmost distress and concern, especially since China’s Liaison Office in Hong Kong asserted that it can effectively interfere with the policy and functioning of the Hong Kong SAR Government.
In the years from 1981 to 2013, I spent nine years teaching law at the University of Hong Kong, seven years at the Chinese University of Hong Kong and one year at City University of Hong Kong. I had the pleasure of having some of the present-day senior judiciary as students.
From the early 1980s, I was very much disturbed that the laws we taught had no consent from the people they governed, due to the lack of any real semblance of democracy in Hong Kong.
Of course, that suited the British and Chinese governments. I guess it also suited me as I regularly banked my paycheque. Tacit consent was how we salved our consciences.
I wrote a snippet in the Hong Kong Law Journal circa 1982 entitled “I Trod with Mastodons,” seeking to articulate the city’s bemused rejection of the American and French Revolution’s stamp on world history, namely that only those who ruled with the consent of the governed were legitimate.
Much of life is about perceptions. Hong Kong has long been perceived as very different from mainland China. It’s safer, its systems less arbitrary. Officials are more restrained, disciplined. A lot of that is due to the fundamentally different legal systems.
Hong Kong’s laws and lawmakers may have had little claim to legitimacy but its judges did, as they were independent of the lawmakers. That changed to a degree, perhaps fatally, with the Chief Executive’s referral of the Court of Final Appeal’s decision in Ng v Director of Immigration to the Standing Committee of the National People’s Congress.
This is a body with no claim to any kind of independence from the government, indeed, it is the essence of government. My lament was published as an article in the South China Morning Post entitled, “The Day the Law Died in Hong Kong,” in the early 90s.
From the mid-1980s, I have had the privilege of writing books and articles with Professor Zheng Chengsi, of the Chinese Academy of Social Sciences, about the development of law in China, which in those days was almost totally concerning intellectual property as a mode of technology transfer from the Western world.
There were no contract laws, property laws, even road traffic laws. Only a short time before, advocating law was a counter-revolutionary offence.
Those were heady days when the thousands of years old Chinese cultural debate between anti-legalist Confucianism and Legalism struggled to contend in the ideology of the Chinese leadership.
Confucianism, in the sense of yielding to the interests of others, is, of course, a major plank in humankind’s golden rule of morality. But the state is more than an aggregation of others.
Greek-based civilisations developed democracy, natural law, and then human rights as a bulwark against the excesses of the state. In China, Legalism of course won and we have what is called the Chinese legal system.
But many scholars fought hard to insist it was merely a system of administrative authorisation as it lacked the hallmarks of rule of law. Principally, it lacked any semblance of an independent judiciary, the umpires as to how the game, whichever game is chosen, is to be played.
In China, the winning team (the Chinese Communist Party) tells the umpires what the rules of the game they are playing mean. When you’re extradited to China to face a criminal charge those are the umpire or judges you face.
In a similar way, around the time of the accession of the current Chinese leader Xi Jinping, independence of the judiciary was flirted with as a method of controlling Communist Party discipline, if nothing else.
There was a tragedy in the eyes of the chief justice of the Supreme People’s Court when he announced – he was probably coerced – that independence of the judiciary was not an ideal to which China aspired. Indeed, Beijing rejected it.
Today, Chinese laws and lawyers have multiplied exponentially. But those laws are different to the kind in Western laws. The Chinese constitution, which has been amended multiple times, was never intended to bind the Chinese Communist Party (CCP). It’s an action programme or statement of intent.
No court can ever hold the government to the provisions of the constitution. And laws made pursuant to it – namely all laws of the People’s Republic including the Basic Law governing Hong Kong – are not laws like ours. They bind everyone except the highest level of the CCP. The “Core” of the party, now designated as one man, Xi Jinping.
The Core is and always has been above everyone and all law. Marxist theory and Confucian tradition happily dovetail. That’s where dialogue between Chinese and Western jurists is so often misconceived. Both sides mistakenly assume laws which bind everyone. Or worse, those that know deliberately don’t articulate it.
The current mainland mantra of rule of law doesn’t affect this. It is and always has been in China a very different concept of law. Adding the preface of, “Rule of,” doesn’t change this. And of course the key to Dicey’s concept of Rule of Law is an independent judiciary.
If China is to equal the United States in power and influence, its currency the Yuan, must become an alternative to the US dollar. But that ultimately depends on investors’ confidence in the robustness and independence of the judges in its legal system. A nice irony. Shooting yourself in the foot seems an apt expression.
Against this background, in the last decade, we have seen the people of Hong Kong struggle with their identity. Martin Lee is rightly termed the “Father of Democracy” in Hong Kong. Taxi drivers used to tout passengers to make bets on how long he would survive after 1997.
I remember Lee as one of the highest-paid silks (Queen’s Counsel, or Senior Counsel these days) in Hong Kong. He was more in demand and more expensive than legal practitioners bought out of London.
He commanded those fees because he was very good in court. He took on headline cases like in the 1980s, defending the son of media magnate multimillionaire Deacon Chiu, who had run over a policeman at an ID card check roadblock. People then were not used to the police being challenged in court.
Stories abounded of his anonymous financial assistance for students of poor families seeking University education. I’ve only met him once on the street, where I stopped to offer my admiration. He’s a lawyers’ hero, and we are a cynical lot.
Lawyers know technical breaches of laws happen all the time. Crossing the road, what you say or write, filling in a form, where you go. Whether prosecution is launched is a very different question.
Almost every day of the week and especially on Sundays, gatherings in Chater Garden in Central, whether by domestic helpers or model boat clubs, constitute breaches of the colonial public order legislation as gatherings of more than three persons require a permit.
Choosing whom to prosecute shows what a government stands for and where its priorities lie. Protestations of equality before the law just don’t cut it.
As a Catholic, Martin Lee would know something about the role of martyrs. Heavens, pardon the pun, it’s not impossible that one day he might be proclaimed a saint.
What you sanitise today might conceivably be canonised in future. Perhaps someone should tell both governments?