[Ming Pao] Johannes Chan: Do NPC's Draft Resolutions Comply with Basic Law?

HKU Chair Professor of Public Law Johannes Chan: Do NPC's Draft Resolutions Comply with Basic Law?

Translated by John C., edited by Karen L., written by Johannes Chan Man-mun
Original: https://m.mingpao.com/ins/%e6%96%87%e6%91%98/article/20200525/s00022/1590332595169/%e4%ba%ba%e5%a4%a7%e6%b1%ba%e8%ad%b0%e8%8d%89%e6%a1%88%e6%98%af%e5%90%a6%e7%ac%a6%e5%90%88%e5%9f%ba%e6%9c%ac%e6%b3%95-%ef%bc%88%e6%96%87-%e9%99%b3%e6%96%87%e6%95%8f%ef%bc%89 

The current draft resolution of the National People’s Congress (NPC) mandates the Standing Committee of the National People's Congress (NPCSC) to enact the National Security Law in Hong Kong. Here we are to explore whether this draft resolution complies with the Basic Law. Perhaps, it is, to some people, a self-explanatory case that needs no further clarification. Yet, as long as China intends to maintain the integrity of the rule of law, and the NPC inclines to abide by the law, but not to override it, the legislation shall not violate the Basic Law. Such is the seriousness of this subject.

There are at least 5 points to indicate why the draft resolutions of NPC do not comply with the Basic Law under the jurisprudence context.

The Basic Law Article 23 Clearly Specifies HKSAR ‘Shall Enact Laws on Its Own’

The then-proposed Basic Law Article 23 designates Hong Kong Special Administrative Region (HKSAR) ‘shall enact laws on its own’ when it comes to National Security legislations, namely that HKSAR shall enact laws according to the tradition of common law and its own legislative process. Given that Hong Kong and mainland China have separate legal systems, values, and legal concepts, the principle of the Basic Law is to allow HKSAR itself to enact laws with relevance to personal liberty and criminal liability for any highly political and sensitive situations. It should be noted that laws relating to the matter of national security have always been considered highly sensitive, and ‘shall enact laws on its own’ serves the precise purpose of protecting the completeness of the HKSAR’s common law. 

There were lots of concerns in the Hong Kong society when the Basic Law article 23 was being drafted, especially to the vague concept of national security in mainland China: the ‘counter-revolution’ charges on Wei Jingsheng were still very fresh in people’s mind as he was sentenced to 15 years’ imprisonment simply because of his speech yearning for democracy. ‘Shall enact laws on its own’ in Article 23 was then established under this historical background.

Some people suggested the possibility of coexistence between the National Security Law and the Article 23 in attempt to justify the legitimacy of the NPCSC's decision, to which they might not notice that it poses a challenge on the meaning of the presence of an Article 23 (‘shall enact laws on its own’). It's like a father giving a child $10 to buy whatever sweets he likes, but then decides to take away $4 and asks him to get chocolate, while at the same time telling the child he isn't breaking his promise to let the child make his own decision. It is in Hong Kong's duty to legislate an Article 23, but it does not inherently support the idea that NPCSC can enact laws for Hong Kong directly.

Article 18’s ‘Generic Power’ Shouldn’t Extend to Article 23

Some leap to a hasty conclusion that there is no conflict between self-legislation and the implementation of national laws in Hong Kong, whereas this is a blatant violation of the general principles of legislative interpretation. Article 18, as a generic law, allows NPCSC to apply certain national laws in Hong Kong through Annex III, while Article 23, as a concrete law, specifies that laws within its scope shall be enacted by Hong Kong itself. Under the general principles of interpretation, concrete provisions are superior to generic provisions. Thus, the generic power in Article 18 shall not extend to the legal provision stipulated in Article 23. Otherwise, Article 23 would be superfluous.

Furthermore, Article 18 Annex III is only applicable in national laws, to which some people irresponsibly claimed that they refer to all the laws passed by NPC or NPCSC, but not the ones passed by provinces and municipalities. This, under normal circumstances, could be a reasonable interpretation, but not under in Article 18. The 'national laws' in Article 18 Annex III must be relevant to national defense, foreign affairs, and outside of the sphere of autonomy. While the drafting of such national laws has not been within the power of provincial and municipal districts, national laws should be dependent on the nature of the law being applicable nationwide rather than which political body is responsible for the drafting. Under the Basic Law, Hong Kong legislature is vested with legislative power: Article 23 requires the laws within the scope of the article should be enacted by Hong Kong itself; Article 18 states the central government could apply laws related to national defense, foreign affairs, and outside of the sphere of autonomy to Hong Kong. The combined purpose of these laws and articles is to illustrate clearly that only when the matter concerned is of ‘national defense, foreign affairs, and outside of Hong Kong autonomy’ will the central government pass laws for Hong Kong. On top of that, the laws should be applicable to Hong Kong and nationwide, hence, to secure and protect different legal systems in Hong Kong and in mainland China. Thus, the central government shall not enact laws for Hong Kong under these legal conditions.

Some may argue that the Garrison Law is a precedent for the central government to enact laws specifically for Hong Kong, but they must have missed this: People’s Liberation Army Hong Kong Garrison is the key stakeholder of the Garrison Law. This article declares the responsibility of PLA personnel in Hong Kong, which is not an applicable article to the general public in Hong Kong. This time, the NPCSC's enactment of the National Security Law in Hong Kong is against the human rights and freedom of Hong Kong people, and these are what the Basic Law is meant to protect.

Constitution Article 31 & 62 Do not Empower the NPC to Disregard the Basic Law

NPC’s draft resolution on the Nation Security Law refers to its legal basis in Article 31 & Article 62 (Item 2, [13] and [15]) of the Constitution of the People’s Republic of China. Article 31 of China's Constitution Law is the legal basis of establishing Special Administrative Region (SAR), and Article 11 of the Basic Law clearly states that the SAR’s system, protection of freedom, legislative and judicial system are all based on the Basic Law. The Basic Law Article 11 is applicable on the NPC as well—NPC’s decision ought not to contravene the provisions of the Basic Law. In Article 62 of China's Constitution Law, item 2 refers to the NPC’s power ‘to supervise the enforcement of the Constitution’; Item [13] refers NPC’s power ‘to decide on the establishment of special administrative regions, and systems to be instituted there’; Item [15] refers NPC’s power ‘to exercise such other functions and powers as the highest organ of state powers should exercise’. These generic provisions do not empower NPC to disregard the Basic Law. True, it is within the NPC's power to propose amendments on the Basic Law—abolishing the provisions on ‘shall enact laws on its own’ stated in Article 23 and conferring NPC the power to legislate directly for Hong Kong—but it involves following certain procedures, not by mere decision.

The Unsettling Future of the Courts' Role

Some worrying view suggested that the NPCSC’s scope of legislation does not completely overlap with Article 23. In the NPC’s drafted resolution, NPCSC is authorised to legislate on ‘acts that seriously threaten national security, such as secession, subversion of state power, and organising terrorist activities, as well as foreign and overseas forces interfering affairs of HKSAR’. These are quite vague in scope, which could potentially cause impacts on financial, economic, and network communication, on the links between religious groups and their foreign counterparts, on the cooperation between local NGOs and foreign NGOs, on the cooperation between universities and foreign organisations, etc. As the lines that divide national security and civic rights blur, what is to be done if NPCSC passes laws that are conflicted with the protection of human rights in the Basic Law? Can the courts in Hong Kong declare that the laws passed by NPCSC shall be revoked due to the violation of the protection of human rights in the Basic Law?

What's more distressing is the role of the Courts. According to the Basic Law Article 18, provisions in Annex III shall relate to national defense, foreign affairs and outside of Hong Kong’s autonomy. All these matters are outside of the scope of the Hong Kong Courts' power of review. Unless the laws that NPCSC enacts specifically authorise the Hong Kong Courts the power of review on the matters, the Courts in Hong Kong may not have jurisdiction over cases of this kind. Even if Hong Kong Courts were to have the power of review, how would they interpret this national law? The way how mainland China drafts and interprets law is disparate from the principle of the common law. Mainland’s legal interpretation is primarily based on political consideration over legal provisions. From NPCSC's conversion of the oath-of-office requirement in the Basic Law to the eligibility for election to the Liaison Office reinterpretation of 'mainland government departments' in Article 22, mainland’s stance on legal interpretations is manifest.

I, for 100%, believe that the courts in Hong Kong will not adopt the mainland-China way to interpret or execute the Hong Kong National Security Law. However, another question arises: what if the Hong Kong courts’ interpretation of the law is not in line with that of NPCSC? Precisely, if the Hong Kong courts narrow the scope of related offence in the law in order to protect human rights, or consider certain charges as violating the protection of human rights under the Bill of Rights or the Basic Law, would NPCSC applaud or interfere? 

Beijing has time and again blasted the judgement by the Hong Kong courts, including the severe criticism on the Court of First Instance’s judgement on Emergency Regulation Ordinance. Can NPCSC intervene arbitrarily if the Hong Kong courts’ judgement is contrary to NPCSC's stance of legislative intent? Moreover, NPCSC has the power of interpretation for the Hong Kong National Security Law since it is a national law. While it is still in doubt whether such interpretation has any restrictions on the Hong Kong courts, it is possible for the Courts to bypass the NPCSC’s interpretations on the law in reality?

Establishing New Agency of National Security in SAR Do not Comply with the Basic Law

In the NPC’s draft resolution, the Central People’s Government is given permission to establish certain agencies that are related to national security in SAR, to fulfil the duty of safeguarding national security in accordance with the law. So, what exactly is this agency? It is feared that this state agency does not fall into the category of the Central Government’s 'department' in Article 22, and is thus not subject to Article 22, which only adds to more uncertainty: what power do these state agencies have? And under what supervision? Can the agency exercise the right of investigation, right to arrest, and right of interrogation in Hong Kong? The Ministry of State Security in mainland China is known to have a very wide range of power with little transparency; how does it comply with the Basic Law by allowing state agencies to carry out law enforcement activities in Hong Kong?

The Oppression Will Only Aggravates

In just a few weeks, the Liaison Office declared that it is not, in the ordinary sense of words, a ‘department of the Central People’s Government’, whilst having the power to supervise the implementation of the Basic Law. What followed was the Education Bureau pressured Hong Kong Examinations and Assessment Authority (HKEAA) to delete a question on the HKDSE history paper due to political grounds. After that, the Communication Authority (CA) ruled The Headliner, a satirical TV programme produced by RTHK, for breaching the Broadcast Code of Practice, and afterwards a direct law enactment for Hong Kong by Beijing. This series of moves naturally makes one wonder how much more autonomy is left in Hong Kong.

In retrospect, some people think: had the legislation on Article 23 passed, the present situation would not have arisen. Wishful thinking it is. There are many factors causing the current disheartening situation. Years ago, ex-Premier Wen Jiabao enjoined the then HKSAR government to deal with the deep-rooted conflicts in Hong Kong, but rather the government ignored it and stirred up the troubles, aggravating the inner conflicts. Fast forward to today, the self-opinionated government pays no heed to public opinion, and has missed the opportunities to resolve social conflicts over and over. Nonetheless, added with the ongoing trading and political contest between China and the US, this is how today's situation has become what it is. Even if the legislation on Article 23 were passed, the nowadays conflicts and clashes would be inevitable due to the clumsy handling of the most recent two governments. To most Hong Kong people, the now major issue concerns social order, and has nothing to do with national security.

To Beijing, however, whatever happens is always plots and conspiracies organised by external forces (i.e. foreign countries). Instead of holding successive SAR governments to account, it inclines to escalate the issues to the level of national security, and even adopts the approaches which will demolish ‘One Country Two Systems’. Is Beijing’s decision, at what degree, based on alarmist’s talk and people’s act of adding fuel to the fire? It is probably all down to the judgement of history. 

At the end of the day, the power lies with Beijing: such issues will not be resolved after NPCSC's passing of the National Security Law. It will be only followed by a series of prosecutions, suppressions, and restraints, with a view to turning Hong Kong into a submissive society where no one thinks and dares to question authorities. Possibly, in Beijing’s eyes, what 'One Country Two Systems' stands for is merely allowing two economic systems in a country—not enabling a civil society with independent thoughts or values that would question those with power. After all these, Hong Kong’s public freedom will be narrower and narrower with overwhelming stress of political correctness at all times. The high degree of autonomy will then exist in name only. History has taught us a lesson: oppression will only aggravate, and will never enlighten. This is an elegy of 'One Country, Two Systems'.

[Ming Pao] National Security Law Expert Fu Hualing: Whole Society to Pay If Relying on Courts to Solve Political Matters

National Security Law Expert Fu Hualing: Whole Society to Pay If Relying on Courts to Solve Political Matters

Co-translated by AH and Karen Leung, written by Tsang Hiu-ling (printed on 3 May 2020 on Ming Pao) 
Original: https://news.mingpao.com/pns/%e5%89%af%e5%88%8a/article/20200503/s00005/1588444459382/%e5%9c%8b%e5%ae%89%e6%b3%95%e9%81%94%e4%ba%ba%e5%82%85%e8%8f%af%e4%bc%b6-%e4%be%9d%e9%9d%a0%e6%b3%95%e5%ba%ad%e8%a7%a3%e6%b1%ba%e6%94%bf%e6%b2%bb%e5%95%8f%e9%a1%8c-%e6%95%b4%e5%80%8b%e7%a4%be%e6%9c%83%e4%bb%98%e4%bb%a3%e5%83%b9 

The Core Value of Article 23 is against Secession

Named after the 2017 conference 'China's National Security: Endangering Hong Kong's Rule of Law?' launched by HKU Centre for Comparative and Public Law, the book included Professor Fu Hualing's article (titled 'China's Imperatives for National Security Legislation'), which, as its name suggested, probes China's desperation to enact a national security law.

The year 2017 marked the 20th anniversary of the transfer of sovereignty over Hong Kong to China; President Xi Jinping gave a speech in which he stressed the importance of “One country” in “One Country, Two Systems”, saying that, “'One country' is like the roots of a tree. For a tree to grow tall and luxuriant, its roots must run deep and strong. The concept of 'One Country, Two Systems' was advanced, first and foremost, to realise and uphold national unity,” and that “Any attempt to endanger China’s sovereignty and security, challenge the power of the central government and the authority of the Basic Law of the HKSAR or use Hong Kong to carry out infiltration and sabotage activities against the mainland is an act that crosses the red line, and is absolutely impermissible.” From there, Professor Fu who specialises in constitutional law, legal institutions, and human rights with a focus on China explained the existence of Article 23 in the context of China politics and Hong Kong's constitutional framework for the legal system, and he said, "While Article 23 mentions prohibiting acts of 'subversion' and 'secession', I think the core is more about the latter."

The Systematic Legalisation of Power

“To CCP, the connotations of national security have two aspects—politics and nationality. The ferment of such issues regarding the former translates to the subversion of the CCP-led socialism, of which I wouldn't regard as a big concern in the party's point of view.” Hong Kong is known to have a tradition of being the “base of subversion”, from Sun Yat-sen's revolutionary campaign to overthrowing the Qing dynasty, to the strategic transportation hub in the Chinese Civil War, followed by the surge of political refugees from mainland China between the 1960s and 1970s. “Hong Kong has long been considered a place for subversion. It was, during the Qing dynasty and the Republic of China, acting as a haven for the resistance.” Fu believed that the CCP understands well the denunciation it received from Hong Kong, “Socialism isn't mainstream in the global world after all; the criticism over the system has never ceased to exist.” Yet, the alert of “secession”, as he pointed out in the article, differs from that of “subversion”, for the reason that it interconnects with the matter of “nationality”. CCP premises its political logic on the historical burden it inherited—to maintaining territorial integrity—and on that account, the talks surrounding Hong Kong independence since the Umbrella Movement agitate Beijing the most.

The Target of Article 23 IS “Hong Kong Independence”  

From CCP's standpoint, the main threat to national security is “the infiltration of external forces”. Starting from 2013, Weiquan lawyers and activists [Translator's note: “Weiquan” is a non-centralised movement in mainland China that seeks to protect and defend the civil rights of the citizenry through litigation and legal activism; some translate as "right activist.] have been prosecuted in rapid succession. In 2015's 709 Crackdown, on the charge sheets were repeated emphasis on their alleged affiliation with organisations in Hong Kong and foreign countries, as well as the foreign-aid funding they were said to receive. In an attempt to unravel CCP's timeline on the course, Fu mentioned that it was in the same year of the nationwide crackdown when the Standing Committee of the National People's Congress (NPCSC) adopted the new national security law. One by one, the Counterespionage Law, Cybersecurity Law, Foreign NGO Law (so as to regulate their activities in mainland China) and Counterterrorism Law have been implemented since Xi Jinping assumed office, of which Fu commented, “The institutionalisation and legalisation of CCP's power are unprecedented. At no time was its power demonstrated through legal measures; the Xi regime's approach is rather definite.”

Thenceforth the path of Hong Kong and that of mainland China intersect. In 2018, under the Societies Ordinance, Hong Kong government banned the operation of the Hong Kong National Party. In Fu's understanding, Beijing has recognised it an opportunity to enact Article 23 as this imaginary enemy (aka “Hong Kong independence”) arises. Fu added, “The then attempt (the National Security Bill 2003) was a symbolic gesture: The Central Government of China said to give it a go, so Hong Kong government gave it a go; the people in Hong Kong didn't turn out to be pleased with it, so they accepted the result and withdrew it. Now is different, the bill serves an actual purpose for Beijing—Those advocate independence shall, from now on, be punishable by the Article. That's the clear target.”

Has the Perfect Timing for Legislation Passed? 

“In a sense, perhaps we should reflect why we were to reject the bill, and if such a move we made was right.” Fu added, “I personally felt that the wordings of the withdrawn bill were perfectly inclusive. The offence of subversion, for instance, had had enough measure to safeguarding the interests of defence on every single detail. We could either exclude the bill from the system or... Let's just say, further adjustment was not much needed.” Now that the police citing the dust-laden section 9 (seditious intention) and section 10 (offences) of the Crimes Ordinance, both of which have not been exercised for 68 years, Fu said, “The step next is to see whether the Department of Justice and the Courts will accept this. If yes, it will pose a much greater challenge to Hong Kong's rule of law than Article 23 of the Basic Law. In this case, we might as well have the latter.”

“The Law of our society is not ideal as some people deem to be. Refinement should have been made long ago; in retrospect, it would have been a better time to do it back then than now.” Fu went on to say, “A huge restriction on freedom of speech or freedom itself was it (the 2003 draft of Article 23) generally perceived. But at the same time, none of the thoughts and alterations was intended for some of the harshest provisions adopted from the colonial times.” He envisaged that if only with physical violence were to be guilty of an offence regarding seditious intention, “many people would not have been convicted.” After 17 years, once again the enactment of Hong Kong's controversial national security law is on the table. How should the starting point and the bottom line be this time around? To answer the question, Fu indicated the feasibility to use the 2003 draft as the basis, while he said, “It depends where our persuasiveness lies in the end if we are to demand higher threshold of conviction from the Hong Kong government or the Central Government of China, and to convince them to relinquish such convenient and effective governing tool.”

The Criteria for the Offence of Secession 

“Setting side by side our existing laws and a new one, I would prefer the former as a more beneficial way to maintaining the intactness of Hong Kong's legal system, especially on the protection for freedom of speech.” Fu continued, “What worries me most about such a new law is the uncertainty over the offence for succession. Back when 2003, it was stated the acts of which resisting the Central People's Government in its exercise of sovereignty over a part of the People's Republic of China “by force”, “threat of force”, or “other serious unlawful means” would make an offence, whereas in today's circumstances, as to whether or not the previous requirements fit, I'd rather not say.”

Dialogue over fights on Solving HK's Predicament

Fu examined in his article the relationship between the Basic Law and the Constitution of the People's Republic of China, “The Basic Law is not a part of the Constitution of the People's Republic of China, but it is clear to have been mandated a special constitutional status.” Today, in addition to the controversy over the re-introduction of Article 23, there is a heated debate on the interpretation of Article 22.

Does the Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region (LOCPG) fall under the description “department of the Central People's Government” written on Article 22, which is specified to have no authority to “interfere in the affairs which the Hong Kong Special Administrative Region administers on its own in accordance with this Law.”? LOCPG repudiated the framework, and asserted to have supervisory power over Hong Kong, to which Martin Lee Chu-ming, the “grandfather of democracy” said the late Lu Ping would have bitten its head off, whereas Teresa Cheng Yeuk-wah, Secretary for Justice, sided with the LOCPG, and said that the office represents Beijing in Hong Kong not as a form of “central government department”.

“That should not be the focus of the discussion,” Fu commented, “The key is not whether the LOCPG is bound by Article 22. The key is to clarify what they could do or say on certain issues, and in which sense it is interfering, and in which sense it is supervising.” He elaborated, “Be the LOCPG a department defined by Article 22 or not, it does not change the fact that it is assigned by the Central People's Government, namely that it represents the Central People's Government. The Hong Kong and Macau Affairs Office of the State Council and any other institutions under the Central People's Government, as well, apply to the same implication. What's on point is whether their speeches and actions fall within the framework of the Basic Law.”

The Regime's Self-restraint

Since the NPCSC has the power of final interpretation of the Basic Law, doesn't it inherently spell the “settlement” of the dispute? “Not entirely so. The Central government has the say, but this doesn't necessarily end the case.” Fu argued that such issue is not to be explained on a legal ground, and it largely depends on the regime's self-restraint, “It involves the relationship between the Central government and the province. To Beijing, it is a matter of self-restraint. That is to say, we are not, in any way, allowed to force the process, meaning that a compromise from the Central government through legal means is not accessible. Any variation concerning the positioning of the regime is only affected by the political economy of the global environment.”

When asked wouldn't it be crying for the moon to anticipate the regime's self-restraint, Fu's advise was to “be realistic”. “The Basic Law is formulated not by us citizens, Hong Kong itself or the UK, but the National People's Congress, which equals China's sovereignty. Bearing in mind of this fact, we'll realise many such issues arise merely as the political ones.” He then added, “There will be some price to pay if any regime is to disrespect its own law. The question now is whether it is willing to pay the price and weather the aftermath.”

“One Country, Two Systems”, in Fu's views, is still alive. “The Central government has made it clear that 'One Country, Two Systems' is a mandate, and thus it is in its power to withdraw it,” he continued, “In a sense, it suggests that the future of Hong Kong will still be in our hands.” What is within our grasp? “The very concept of 'One Country, Two Systems' is established as it provides China with value. I believe it serves as a viable direction or model for China's future development. Many ethnic Chinese, including the vast majority of mainland Chinese, consider it a worthwhile pursuit for China. If China is not to adopt the Western model of separation of powers, then where should it go? The existing structure of China's system has got to evolve. It wouldn't be possible to stay the same forever simply because there's no practical solution to the predicament of internal regime change.” Fu added, “I wouldn't say 'One Country, Two Systems' is a lost cause. Some of the mechanics of political system design in Today's Hong Kong is still very much a useful reference for mainland China. I guess Hongkongers would be more likely to disagree with the practice of the constitutional principle in question than the mainland Chinese.”

In 1989, Jiang Zemin, the then Chinese President, once used the analogy “river water and well water should not mix”. [Translator's note: It was to indicate that the Chinese socialist system should not be subjected to subversive interference from Hong Kong, especially pro-democracy activities, and China would also not interfere in Hong Kong's political system.] Fu thinks the times are “long over”, and holding dialogues is the only way out. “Generally, the key to resolve the argument over constitutional theories is by 'dialogues'... The judiciary have 'dialogues' with the legislative branch of government, and vice versa: Legislators would picture how the Courts perceive the proposed bills and adjust the draft so that it isn't of no avail; the Judges would picture the implications to the LegCo if they are to declare certain laws as invalid.” Applying this to the relationship between China and Hong Kong, “Perhaps Hong Kong Courts and the NPCSC are alike, both constantly trying to avoid complications that might have arisen when exercising its own power, hence creating self-constraint of power and constructive dialogue in the process. It's like playing chess—strategising by thinking a few moves ahead.”

“Being Able to Maintain the Status Quo is a Blessing Already”

In 1983, Fu graduated from Southwest University of Political Science and Law, one of the most prestigious law schools in mainland China (alumni including Zhou Qiang, current president of the Supreme People's Court, the equivalent of China's chief justice.) He received his Master's degree from the University of Toronto in 1988 and his Juris Doctorate five years later from Osgoode Hall, a century-old renowned law school in Canada.

“My views differ from those of my colleagues,” Fu explained, “I have the greatest respect for them. Perhaps they think I'm setting the standard too low, but my understanding of the situation refers to my background.” He then continued, “Another reason is I'm a bit too realistic. For all, I think, being able to maintain the status quo is a blessing already.”

In terms of the rule of law, Fu is more optimistic than his colleague Benny Tai Yiu-ting. Comparing the disqualifications of lawmakers and the sentencing of Occupy Central leaders, Fu thinks that the Courts “had no other choice than to disqualify” after Beijing gave its interpretations of the Basic Law. However, though Beijing wanted severe punishments for the Occupy Central leaders, the judicial system in general, and the Court of Final Appeal in particular, still showed its independence and defiance and willingness to embrace liberal values… and to view Occupy Central as similar to acts of civil disobedience seen in other places with democratic systems”. It seemed that the Court of Final Appeal held the view that protesters and their leaders are worthy of sympathy and lenience, as long as the protests do not involve violence.

Too Much Political Responsibility on Judges' Shoulders

Nowadays, when the prosecution and the police are both on the government's side, many people wonder if justice can still be done. “This is the biggest problem in Hong Kong, which leads to the real worry for the future of the Law. We have put so much weight on the shoulders of judges, who are also human beings. It's not very fair to the Court for one to put all the political responsibility on the judges' shoulders and impute the unsatisfactory outcome to them. The series of events about disqualification is a case in point: Why didn't the Chief Executive or the then President of the Legislative Council take any action? With that much power, they did nothing and let all the responsibility fall on one judge. In fact, they were passing the buck in such a mindset: No one could solve it anyway, just let the judge do the job. So long as the judge decides, we will execute.” On top of that, legally speaking, Fu pointed out there is a price to pay for civil disobedience.

How did Fu see the role of judges from the Lennon Wall stabbing case in Tseung Kwan O? “Judges do have their own personal feelings. It's possible for them to sometimes mingle their political stance to the verdict. Whatever the system is, there will be bugs, errors, mistakes, and it's acceptable as long as there is room for correction. Rather than saying that the whole system is broken when one mistake is discovered, it's more preferable to deduce whether the entire system is still trustworthy.”

“Given Hong Kong's system, it's unlikely for the Court to decide that a person's not guilty out of noble intentions.” Fu supposed that pushing the Courts to the forefront of solving political problems will result in unfavourable consequences for the whole community to bear. “With the element of violence in the movement, participants are expected to face criminal liability. Considering that a fair appreciable proportion of the people have taken part in it, the entire community, together, will suffer—the Courts are up against the upcoming waves of challenges over its credibility and the possibility of losing people's trust.” Fu reminded, “It is to be noted that by the time famous figures like Martin Lee Chu-ming and Margaret Ng Ngoi-yee go to court, it is the complete political system which stands trial, not only them. Nobody has hoped for such a condition. All of them had tried to evade this political backdrop, and it is a tragedy for our society that it inevitably caught them.”

There is an unhealthy tendency to deify Laws and legal systems in us, Fu said, “The law is, in fact, a conservative, backward mechanism that only gives people basic protection provided that it can smoothly function.” As a native of Anxiang County in Hunan Province, he grew up in a rural village which “cannot be found on a map”. Having lived through the Cultural Revolution, he initially believed that “society can be changed through laws”. “A lot of us assumed the reason mainland China had the Cultural Revolution was that there was no rule of law, and conversely, with the rule of law there would be no Cultural Revolution. It was a naive conclusion. The truth is it was the lack of any concept of democracy that contributed to the Cultural Revolution.” Fu then expressed the way he approaches the law now, “Where the law can play its role uninterrupted, there is a fine system. It is good enough to have room to perfect the legal system itself; it is good enough to be able to solve problems in the relationships between individuals, maintain a balance between economic development and citizens' livelihood, keep the government rule within bounds, through the legal system. But let's not forgive that the law is under politics, and constructed by the politics. It is not very practical to  think that one can change the way politics works.”

After Dr. Li Wen-liang's death, he participated in the joint signature petition of the open letter titled “Only Change is the Best Remembrance for Dr. Li Wen-liang - A Letter to the National People's Congress, the State Council and Compatriots of the People's Republic of China”, in which he and a group of mainland scholars put forward six major demands, including the comprehensive reviews of domestic and foreign policies in recent years, of party-government relations, of government-public relations, of government-business relations, of Taiwan–Mainland China and Hong Kong-Mainland China relations and of US-China relations. Throughout the interview, Fu managed to strike a balance, without exception, by adding the angle of neutrality. He said that in hindsight it might have shown that the system of mainland China “has its own advantages” for its more effective ways in fighting the epidemic than the democratic countries, however, “The mainlander public outcry is not to be ignored, which offers a glimpse of their thoughts: The people, when being put in a critical moment,  do recognise what the real problem is. Still, in the their minds, there is a yardstick for measuring the good or bad of the government.”

Oust the Democracy alongside the Rule of Law

From the beginning to the end of the interview, Fu reiterated that an Article 23 and all social dilemmas must rely on the solutions achieved by the means of dialogue. He described himself a conservative, and said, “Benny (Tai Yiu-ting) considers it impossible for the rule of law to survive without democracy (Tai once referred the rule of law in Hong Kong as a zombie, and compared democracy to the one serum that can turn the zombie back to normal.). I tend to think that this is arguable. The worst that could happen is when the democracy is not acquired to the equation and at the same time the rule of law is out of the game.”

Under what circumstance would you determine that the rule of law is demolished? Taking a deep breath, Fu lowered his voice rather unconsciously as if he was visualising that particular moment, “Perhaps it'd be an instinct come by a certain verdict or decision... in a relatively slow process. The day when the international community gave up on Hong Kong would basically be it.” More concretely, he went on to say, “Big companies moving out of Hong Kong. Evident political control in an overwhelming manner... When the embodiment of 'rule of law' is no longer upheld within the law, but out of it. Just as birds take flight before the earthquakes even happen; that's the best sign for human beings.”

Hasn't the time come? “Not yet,” Fu continued, “I'm confident still that the rule of law is of importance to China, not so much in terms of how much the principle has been delivered by the government, but that it is essential to maintaining the country's socio-economic well-being in the long run. The regime allows the rule of law not out of love, but out of its indispensability; that, at least, the regime has awareness of.”

Chan Ya-ming: In Memorial of the Once-Innocent Joshua Wong

In Memorial of the Once-Innocent Joshua Wong

Translated by Samuel L., edited by Chen-t'ang 鎮棠, written by Chan Ya-ming
Original: http://www.passiontimes.hk/article/03-28-2015/22040/ 

As Eileen Chang (a renowned Chinese writer) once said,”it’s better to be famous early.” Eighteen-year-old Joshua Wong has already been ‘The World’s Top 10 Leader’ and ‘The Hundred Leading Global Thinker’ today. I yet miss the fifteen-year-old Joshua. His opposition to nationalist education at the age of fifteen has shocked everyone. While we were ashamed by his innocent appearance, he was our hope, he was, once, my hope as well...

Coming across his photo on Comment on the Apple Daily lately, I was shocked to recognise that such youngster is also getting ‘older’. He once made Yu Yi-wa, a pro-Beijing teacher, in total outrage at the City Forum, an RTHK live programme in Victoria Park. He once showed his political wit in bowing to instead of shaking hands with CY Leung. He once had an innocent and broad smile.

One may not like how he is right now, but one must like the fifteen-year-old Joshua. Instead of growing a lot in the past three years, he has actually become older. Social movements exhausted his time in studying and thinking. Depth of his thinking has almost been stagnant since fifteen years old. But as a leader in an organisation, the more people he met, the more evasive he handles, and the more cautious he speaks. After all, he actually becomes more sophisticated. Once becoming sophisticated, he gets older.

I clearly remember the day when I recognised that the innocent Joshua shall no longer return. It was the last siege of the government headquarter, the most tragic one. While friends and dissidents were beaten up to broken heads and blood, Joshua announced a hunger strike. Such a tragedy full of political calculation simply disgusted me, and it is a total insult to all protesters who shed their blood for democracy of Hong Kong.

I latterly heard him saying that he ‘still loves China’ during a televised interview. It is to me that he is getting more and more sophisticated, more and more close to a politician. I don’t reckon Joshua embracing a ‘cultural China’ as Tang Jun-yi does. I don’t reckon him being so lovesick to China as Ching Cheong is, let alone leading revolution in China as Yang Kuang did. His verbal love to China disturbed me. It is either he lacks critical thinking, or he is speaking to the Chinese communist.

These few months after the Umbrella Revolution, I have been imagining how democratic movement in Hong Kong will be under the leadership of Joshua Wong. I observed all actions of the Scholarism. It ends up only to be developing new medium, endearing Agnes Chow and styling Joshua Wong. ‘Scholarism’ turns to be a business. Focusing on marketing, it is only one step from listing. Do we really have nothing else to do in the past months here in Hong Kong? Where is Joshua when we still live in this world invaded by Individual Visit Scheme?

The answer is: sitting back at home and sharing violent videos of protesters in rehabilitation activities.

Joshua Wong is a saint is what I finally realise. A moral halo is fabricated by global media on him. Rehabilitations are simply too filthy for him, no matter they succeeded or not. He desires eternal social movements. Social movement is to become his prospect, politician is to become his forever occupation. Yesterday, such shameless Joshua Wong even said,’ lastly, I remember that the Fortune magazine was titled as  ‘The Death of Hong Kong’ in summer 1995, envisaging a huge regression of Hong Kong after the 1997 handover. But today, I can firmly tell the editors of the Fortune magazine that your judgements on Hong Kong were totally wrong. Hong Kong will never die, as Hongkongers will be the eventual victors.’

I dare ask Joshua, "In what ways shall we be the victor? Through hunger strike?"

It has already been half a year. Hongkongers are in utter failure. Instead of seeing any hope, I eliminate all hope constructed upon the projection of myself on the leaders’ pretences. A real rebel never deceives himself with hope. Hope is to be, or not to be. Such applies to roads on ground; For actually the earth had no roads to begin with, but when men pass one way, a road is made.

Atsuna: Knowing Our Priority Is Necessary

Knowing Our Priority Is Necessary

Translated by Chen-t'ang 鎮棠, edited by Kristee Q, written by Atsuna

Original: http://www.passiontimes.hk/article/05-17-2015/23019 

(Source: Pentoy)

China has been described after 1949 as: "Relaxed control results in chaos, chaotic society causes stringent control, stringent control results in bitterness [or death], and once bitterness is realised, control is released." (一放就亂，一亂就收，一收就死，一死就放。) On the 1st July 2003, 500,000 protesters took to the streets against the legislation of Article 23, and Tung Chee-hwa, the first Chief Executive stepped down. What Hongkongers deemed as victory was seen as chaos - the result of "relaxed control", was "stringent control" being imposed which paved the way for "economic colonisation" by the Individual Visit Scheme (2003); playing China's National Anthem before Chinese News Reports (2004) and removing the Central Star Ferry Pier and Queen's Pier (2006) were ways to remove the collective memory of Hongkongers, so as to further China's cultural aggression. After Donald Tsang, CY Leung was appointed -- a metamorphosis from "AO ruling HK" to "Party member ruling HK". Donald is but a classic toady who very cautiously nurtured his self-interest; CY is a more daring person who confront Hongkongers by squeezing Hongkongers' necks. He waits to see whether Hongkongers are strong enough to withstand such "bitterness".

People can be reckless when they are forced into corners and the Umbrella Revolution is almost the last attempt of Hongkongers to display their beliefs. Yet "Kongformists" will support slogans like "being rational and tolerant" in these moments. Charging is too radical, breaking glass is too radical, so they mentally masturbate themselves by the number of protesters and the peace and order during and after the protest (like not burning vehicles and picking up rubbish). I am not saying that being tolerant, rational or picking rubbish is bad, but Hongkongers perhaps do not know the priority of action against tyranny.

Tong Tekong, a renowned Chinese scholar in the US, says there are different "main and sub-themes" in different eras of China's modernisation. The main theme is the "most urgent issue" of the era, and the sub-theme is the "less pressing issue". Sometimes the methods of accomplishing the main and sub-theme might contradict each other. So, those who wholeheartedly want to accomplish the main theme might add burden to the solution of sub-theme; but those who forget the main theme and focus on the sub-theme will certainly be spurned.

This is what Mrs Chan thought. When Hong Kong is at the brink of its death, these "Kongformists" are still obsessed with rationality and tolerance - sub-themes that contradict with the main theme.

Hongkongers have lost the best moment for negotiation with China after decades. China does not allow the autonomy of Hong Kong, yet they put "High degree of autonomy" in the Sino-British Joint Declaration (High degree of autonomy DOES NOT EQUAL  AUTONOMY). Although holding the upper hand, China did not rise up, and knowing that Hong Kong would fall into its hands sooner or later, so it pretended to be kind and gentle. Even Mao Zedong promised "As long as the people have oversight of the government, then government will not slacken in its efforts. (July 1945)" Turning their back on the people and failing their promises are good reasons why the Communist Party will succeed. In only 18 years, Hong Kong has "deserved" a lot. It is possible that in a few years to come, given the present dissent the Red Army may come out and suppress protests in Central.

When the last emperor of Ming dynasty, Chongzhen, died, the funeral lament cried, "Keeping cowardly ministers in court, and timid generals in fields of battle, and now nothing has left in our dynasty but our cries and laments." I am immediately reminded of the inabilities of the cowardly HKSARG officials and the pan-dems, and the "caring mothers"  (police) mishandling my tax money. I wonder when we "have nothing left", will my friends or relatives cry to Victoria Harbour, which has long been polluted by Dongjiang water? After the cries and laments,  are Hongkongers ready for any sacrifices?

After all, Mao has said, 

"A revolution is not a dinner party, or writing an essay, or painting a picture, or doing embroidery; it cannot be so refined, so leisurely and gentle, so temperate, kind, courteous, restrained and magnanimous. A revolution is an insurrection, an act of violence by which one class overthrows another."

Maron: HKers Are Not Morally Obliged to Save Depraved Chinamen

Hongkongers Are Not Morally Obliged to Save Depraved Chinamen

Translated by Chen-t'ang 鎮棠, Edited by Karen L., Written by Maron (瑪倫)
Original: http://www.passiontimes.hk/article/03-15-2015/21757/ 

Gary Fan, Claudia Mo, Ray Chan, "Fast Beat", "Long Hair", James Hon, Raphael Wong Ho-ming.....these names were widely acclaimed a few months or few years ago, among all obfuscating pan-democrats. These self-dubbed "progressists" had perplexed some politically naive Hongkongers as if they can truly help.

These days, citizens have witnessed the pan-dems becoming "pan-fried democrooks" and have seen the mounting localist protests against parallel traders. Even though the restoration movement might not be as successful as expected, the localists have gained the public an upper hand of this battle, whereas these self-claimed "progressive" pan-dems took the credit of the favourable results and left the blames to localists.

What is behind localists' success? It is that the localists all know a cruel fact - "politics is showbiz for ugliness". Instead of getting "halo" or claiming credits, localists are pragmatic and emphasise efficiency - even at the expense of adopting extreme means. For the "Restoring Tuen Mun" social movement, the mainstream media have condemned the localists as severe as possible. But we localists are not going down because of it as we do know one thing - nothing is ever done by the pan-dems because they love sitting on the moral high ground and dodge immediately if being criticised. If it is useful in talking the talk, the valorous localists will never have to walk the walk!

Out of fear, the pan-dems have been avoiding conflicts. Take Umbrella Revolution as an example. Admiralty and Mong Kok are utterly two different worlds back then. Pan-dems were calling the shot in the Admiralty "Big Stage". Can weak flowers living in the greenhouse really be compared to the daredevils in Mong Kok? Leung Kwok-hung "Long Hair", a self-claimed revolutionist, has shown his true colours - a coward - since the valorous confrontational tactics derived in Mong Kok.

What Leung uses to do - hurling bananas or sending coffins to officials - is performance art after all, without a slight of influence. The conflicts between the pan-dems and the localists these days are exactly the continuation of the differences between Admiralty and Mong Kok.

I am a localist, and localists can be unscrupulous - I'm not ashamed to admit it. Why not indulging in the "love and peace" crap as the pan-dems do? Let's see what the Occupy Central movement ended up. Nosediving popularity in the end. And then what? There has been seen no coming back. Talking Chinamen into love and peace is merely casting pearls before swine given that it is their nature to bully the weak, fear the strong and nothing else. They will come after you once you show weakness in front of them.

Do remember what Lu Xun says, "We shall not be afraid of speculating Chinese people with the most malicious intent". Chinamen are not entitled to blame Hongkongers for being ruthless since they never deserve otherwise.

Some leftards might believe, "When you oppose devils, you become one of them." For the record, with the mission to protect our civilised city, we choose to treat Chinamen like barbarians - Barbarians will only be taken aback by acts of their kind. 

Localists dare to deal with Chinamen because there's no mind-shackles towards the suggestions by some "Greater China" faction, which are thoughts such as "the institution is the culprit" and "the party and the country are two separable concepts" so as to harbour their own kind. Leopard cannot change its spots. Even with a different regime, Chinamen are Chinamen.

Imagine the "the party and the country are two separable concepts" discourse stands. It would not be a problem if Japan does not apologise for what they have done in WWII. By this very logic, the Imperial Rule Assistance Association would have nothing to do with Japanese. Therefore there would be no need for today's Japanese to bear the responsibility back then. This logic itself proves what the kind of people Chinamen are. I wouldn't mind if Chinamen mutilate themselves with such retarded thought. But letting them to rule over Hong Kong? The answer is "No", a certain "No".

Democracy and China combined is the best example of Stockholm syndrome. If ever there is some so-called democratic China, it will not change the fact that Chinamen are born colonisers.

Let me ask you a question. If your neighbours have some family disputes, will you intervene between them? Lines are clearly drawn, so "No". Similarly, Hongkongers are not morally obliged to save depraved Chinamen. And the localists are going to kick them out of our home - by all means necessary - before it is too late.

Cheng Lap: HK is a dangerous time bomb in case China has not yet found out

HK is a dangerous time bomb in case China has not yet found out

Translated by Chen-t'ang 鎮棠, edited by Karen L., Written by Cheng Lap (鄭立)
Original: http://chenglap-blog.logdown.com/posts/258649-causes-of-conflict-in-sino-hong-kong/ 

Recently, in Hong Kong, several anti-smugglers protests broke out. For the Hong Kong-China conflict, one will naturally see its inevitableness due to the tug-of-war-like political structure when one observes at the scene here in Hong Kong.

To start with the incomplete authority of the Government of the HKSAR is far and away the cause. Precisely, HKSARG has no approval authority on whom and how many Chinese can travel in and immigrate to Hong Kong, and neither is the amount of Individual Visit Scheme (IVS) cities controlled by the HKSARG. "The problem of Hong Kong is an external one," some of my friends from the police force who involved in the Umbrella Revolution once said so. It can be seen that to most of the people, they wrongly assume the HKSARG has such authority, but as a matter of fact it hasn't.

In addition, half of the Legislative Council (LegCo) comprises members of the functional constituency group, who walk into the seat with zero votes. That is, the case in Hong Kong is an oligarchy, and above such government, there is the "comprador bourgeoisie" (includes landlords, merchants and civil servants) back in the colonial era. The Chinese Communist Party attempts to take charge of Hong Kong by controlling the "comprador bourgeoisie" as Brits did. And this time, given their worship over the nabobism and unlimited power among the corrupt Chinese bureaucrats, it only takes a slight effort to do so. Why? The existence of functional constituency leads to the forevermore-below-half elected seats of the membership. By a no-brainer deduction, interests will side with the oligarchs.

By controlling the functional constituency group, executive has more or less managed to control the legislature. One of the separation of powers has merely gone. Social problems like over-population and the everlasting unfavourable results afterwards are not likely to be solved given the imbalanced power of the LegCo. Translation: bills avoiding those problems that are supposed to be passed have been opposed since they do not earn benefits for the vested interests. It has been seen enough vested interests strengthening their self-interests this way.

In 1998, HKSARG dismantled its original LegCo. And the then provisional LegCo, which its bigwig members were basically appointed by the CCP, aimed to abolish the vital policies by the colonial government which had maintained the social stability:

- Rent control. The main policy that limits rent increase. It comes as a wonder to many people why there are less dissatisfaction living under the colonial regime than the CCP. Rent control is one of the many answers as the colonial government restricted both the growth of rent and property price. This policy has fallen apart since 1997 when the oligarchy started to take charge. After that, the property price and rent have been skyrocketed, and those landlords and property owners are laughing their way to the bank. To foreigners, Hong Kong is a place about pricey and tiny flats. And to locals, this is daily life suffering endlessly -- everyone is being exploited and is made to paying rent of some HKD$10,000.

- Public Order Ordinance. Police's authority enhanced and the freedom of assembly and demonstration denied as well, they turn protests against the government from a right to some dangerous thing  -- one might get arrested and detained exercising one's right of protesting peacefully, be searched of one's house out of coming-from-nowhere speculations or get a difficult time. A deterioration of police-civilian relationship is what is leading ahead of Hong Kong. The city has long been famous for peaceful demonstrations, whereas the government decide to neglect their views. Worse still, police force are implemented to stop them from protesting and to file prosecutions against them. All these will only lead Hong Kong to form a ideology as "If a peaceful protest does not bear fruit, why bother?". As I mentioned before, the harder the government blackens and suppresses the peaceful protesters, the more hardcore protesters come to the front of protests.

The change before and after 1997 is lifting the restrictions on the vested interests, as well as allowing the police to attack the public, to which CCP is to blame. It is simply too naive for them to belittle the establishment of a colony and to assume a little effort will do. The communist party think they can rule the place with compradors without knowing that a sound separation of powers behind is more than necessary. Although Hong Kong was removed from the colony list in 1972 (Link 1, Link 2), the CCP still treat Hong Kong as one of them. The CCP has taught their students "Colony is a political entity where the invader controls the compradors" and when the students become the leader of the country, they mistakenly expect applying what the colonisers do is going to guarantee a stable regime as UK back in the colonial era.

The Communist Party itself do not have the separation of powers. Thus there is no any sort of rightful checks and balances to monitor over the compradors. Such regime will inevitably lead to an old-style colonialisation -- all about exploitation, suppression, confrontation and independence.

The election is by no means fair in Hong Kong. In the LegCo, a member might be from over 100,000 votes in geographical constituencies , or 0 votes from functional constituencies. The latter ones are the vested interests and most of them have invested shops and have benefited from IVS and smuggling (Imagine the rent of 1,000-feet shop is worth HKD$1,000,000/USD$129,000 per month -- impossible in the rest of the world). And how did the government deal with the side effect? Suppress.

Letitia Lee, one of the leader from the Blue Ribbon thugs.

Yet, the political infighting involved in Hong Kong at the same time. Some thugs sponsored by Chinese funds and the Falun Gong are putting their Communist-style confrontation in Hong Kong. At first Hongkongers felt "it doesn't matter to me anyway", but gradually they found out that when it comes to things related to the CCP, peaceful tactics are futile, or basically laughing stock.

The government neglects every protest of Hongkongers. They even set up a 3-metre barrier to ban citizens from going inside. In other words, they damage channels and spaces for the government-public communication and protests. Applying police force against protesters, they think that if legal protesting becomes harder and inefficient, the public will give up someday.

Yet the government has miscalculated the situation. The Umbrella Revolution first started with a class boycott with few dozens of people, then tens of thousands of protesters for two to three months of street confrontation -- the root is the miscalculation of the public response. Every riot starts with the thought of "once the authority suppresses, protesters disperse", while the new generation of Hongkongers is now possessing the thought of "more suppression, more confrontation" -- the police ended up using more weapons like tear gas and batons which is a further deterioration to the situation. The more participants in the issue, the more unconventional and guerilla-style confrontational tactics appear -- from a peaceful protest to wearing masks; from willing to cooperate to grabbing fellow protesters from the police force; from protesting to the government to starting anti-smugglers movements.

When the suppression escalates, the tactics of participants escalate causing a vicious cycle. The next bottleneck might be on the "boundary". From the viewpoint of historians, this is a repetition of the period during the end of a colonial era, like Boston Tea Party or the Netherlands' Eighty Years War. The confrontation will take place outside of Hong Kong, maybe in China or overseas. Whatever the government attempts to escalate the suppression against the protesters, it can do nothing outside the jurisdiction of Hong Kong.

Since 1997, the education of Hong Kong has been infiltrated with elements from CCP, such as giving salute to the Five-Star Flag, singing March of the Volunteers (PRC's national anthem) and indoctrinating about the CCP. This "Umbrella generation" is grown under such pro-CCP education. But as a teacher, I found that students never for a day like such indoctrination -- the students hate CCP even more after being sent to the military training camp in there. Students found these coercive behaviour strangle which causes a more anti-CCP generation than ever.

Although most of the Hongkongers assert new immigrants are "diluting" the population of Hong Kong, quite a few of the "Umbrella Generation" are the offspring of new immigrants, and some may even receive their primary education in mainland China. Lives have not been easy for them since the moment coming to Hong Kong. Caught between two stools, a strong sense of anti-CCP awareness appears to them -- there is no way can they go back in China and live happily ever after. It is the sole road for them to strengthen their own Hongkonger identity, so as to be more "Hongkonger" than a "Hongkonger".

This reasoning may sound off, but it makes every sense of it. Historically speaking, Napoleon was the French emperor, but he was from Corsica; Adolf Hitler was the Führer of Germany, but he was from Austria; Joseph Stalin was the leader of USSR, but he was from Georgia. These "foreigners" have nothing in the first place. Hong Kong received almost a million new immigrants alike, and this very thought has grown more than prevalent among such generation.

Also, Renminbi (Chinese Yuan) is not a freely convertible currency, whereas HKD has pegged to USD through Linked Exchange Rate system. Hong Kong is the only Common Law jurisdiction in the Greater China region. Our legal system is similar to the UK and the US. Our currency, passport and legal system are internationally acknowledged. Any cities in PRC, including Shanghai, cannot attain that, even their property price skyrockets or they have a record-high GDP.

(Source: Pixabay)

This is one of the blind spots when people look into HK-China relationship -- there is a vital and inseparable interest behind. The biggest wealth of Hong Kong is the system independent from the CCP, and the compradors know this. They know the CCP will not act rashly in Hong Kong, and so they try all means to gain interests in Hong Kong with the support of CCP. The HKSAR passport and those related companies have become springboards for many important CCP figures in leaving CCP. The compradors do not care to aggravate conflicts or the other way round. They can leave Hong Kong whenever they want even if anything bad appears. High-ranked officials in Hong Kong, including CY Leung's family, are basically abroad. Imagine any major unfavourable issue happens in Hong Kong, these officials could land at some overseas countries safely leaving behind a RMB economy bomb with the citizens.

Many people have a thought that empowering elites the full authorities is what makes things work, and makes things work well, however, in the case of Hong Kong, it reveals the absolute power has every ability to turn people corrupt. It is because the one could use the absolute power in hand to serve one's self-interests and to get away with the responsibilities. A friend of mine from the CCP, who is rather open-minded, says that many people undermines the complexity of the Hong Kong society. China has taken a dangerous time bomb. After the 70s, Hong Kong can no longer be seen as a colony, but few people are aware of that.

Christopher Ho: Lies of HKFS - 7 Mins and You'll Know What's Wrong With HKFS

Lies of HKFS
7 Mins and You'll Know What's Wrong With HKFS

Translated and written by Christopher Ho Quen-thai

(This article is an abridged English version of the two series of Debunking the Numerous Lies of HKFS published on VJMedia between February and April 2015.)

Introduction

The Hong Kong Federation of Students (HKFS) has recently been under a wave of members’ withdrawal, triggered by its various mistakes committed during the Umbrella Revolution. The author came into notice in mid-February (when the Hong Kong University Students’ Union was having its referendum to decide whether to withdraw from HKFS) various financial irregularities of HKFS and one of its major sources of finance – H.K.F.S. Fund Limited, and has uncovered numerous pieces of fact regarding HKFS’s financial situation which has long been concealed. A few of them have been addressed and clarified by HKFS, but more remain unanswered. 

Background information

H.K.F.S. Fund Limited is a company limited by guarantee registered in Hong Kong. It was called “Hong Kong Student Travel Bureau Limited” before 1994. One of its major objectives is to finance HKFS by making to the latter regular donations. The company holds in total three land properties, two of which on trust for HKFS as the beneficiary (including the office of HKFS), and the remaining one an investment property which generates rental income to finance the donations. The investment property is presently valued at around HK$13 million.

All the dishonest statements and practices of HKFS are hereby listed out.

A) All the irregularities concerning H.K.F.S. Fund Limited are, contrary to HKFS’s allegation, not merely “administrative negligence”

1. Between 2004 and 2014 HKFS had, in rampant violation of its constitution, failed to appoint student directors into H.K.F.S. Fund Limited every year.

2. The power of the said appointment lies in HKFS’s Annual General Meeting and Representative Council, and has nothing to do with its administrative body, namely the secretariat.

3. The 50th Representative Council of HKFS allowed H.K.F.S. Fund Limited to reduce the amount of yearly donation to HKFS, which was abetting the company to breach its own articles governing the amount of donation payable every year.

4. The two “reports by student directors of H.K.F.S. Fund Limited” issued in January and February contains a list of member of the company’s board of directors which was inconsistent with the information shown in the Company Registry at that time. The lists in each of the two reports were also inconsistent with each other.

5. A public statement of HKFS issued in February which attempted to explain the irregularities concerning H.K.F.S. Fund Limited contains numerous factual errors, including the relationship between the company and HKFS, and the year in which the name of the company was changed.

B) Every promise of financial reform is empty and misleading

1. The root of the irregularities is HKFS’s rampant violation of its constitution by not appointing student directors into H.K.F.S. Fund Limited every year, instead of any structural or institutional problems which need reforms.

2. The reform promised in the public statement of HKFS issued in February has turned out to be only a two-page yearly report of the “student directors of H.K.F.S. Fund Limited” submitted in March to the HKFS Annual General Meeting, with plenty of errors and unexplained inconsistencies with previous reports, including

a. Error in the date,

b. Error in the names of the directors,

c. Unexplained change of directors not even reported to the Company Registry,  and 

d. Unexplained change of estimated value of the investment property, from HK$8.7 million in the February report to HK$13.4 million in the yearly report.

3. Ridiculously, the February report, which is inconsistent with the January report, and the yearly report, which is inconsistent with both the January and February reports, have been passed without objection in HKFS Representative Council and Annual General Meeting respectively. The Annual General Meeting consists of the entire membership of the Representative Council; in other words, in only one month the same group of supposed student representatives approved two inconsistent reports in which no explanation on the inconsistencies have ever been given. Notwithstanding any promise to reform, these constituting bodies of HKFS remain total rubber stamp.

C) HKFS has probably concealed the internal conflicts as regards H.K.F.S. Fund Limited

1. The membership of the board of directors as shown from company search is still not totally consistent with that alleged by HKFS, which probably reflects internal conflicts between HKFS and the company on the one hand, and among the directors of the company on the other hand. There may well be a dispute as to the validity of membership of certain people in the board of directors.

2. This inference of internal conflicts is also supported by the fact that H.K.F.S. Fund Limited has (in breach of its articles) stopped making donations to HKFS since 2011.

3. The origin of the problem is, after all, HKFS’s failure across 10 years to appoint student directors into H.K.F.S. Fund Limited to exercise its otherwise granted power of control over the company.

D) HKFS is still trying to conceal the facts concerning H.K.F.S. Fund Limited’s investment property

1. HKFS deliberately avoids mentioning the investment property in all of its public statements and Facebook posts which attempt to answer the concern of its financial irregularities.

2. The investment property was deliberately undervalued for millions of dollar in order to downplay its importance.

3. No tenancy agreements regarding the investment property has been registered with the Land Registry for more than 10 years, rendering most information of the rentals inaccessible by even members of HKFS.

4. Owing to the increase in rental income and the failure of H.K.F.S. Fund Limited to make donations since 2011, the company now has, according to its articles, more than HK$1 million payable to HKFS.

敘述，所以存在／還是被敘述，所以存在：試以臺灣為例—淺論香港主體意識的重構

敘述，所以存在

還是被敘述，所以存在

試以臺灣為例—淺論香港主體意識的重構

Written by Mak Heung-fai 麥向暉

Original: CityU Monthly 2015 April Edition

（蒙城大編委授權刊載，稍後將提供英文版）

(English version will be available soon. Authorised to be shared by CityU SU Editorial Board.)

當是非對錯，尚且糾纏於本土、偽本土、港獨還是一國兩制，而無日無之，距政改方案徹行的時間點，又迫在眉睫，此誠危急存亡之秋也。問題之紛至沓來，固謂亟待解決，然而，至關重要的解釋論述—「我是誰？」，仍然束之高閣。這個概念，顯然是身份認同問題，雖道是尋常，亦看似與眼下的脅逼無關宏旨。其實，身份與信念關係千絲萬縷，恰恰是辨除偽本土、港獨、一國兩制等偽命題之箭矢。拙文以為，身份問題只有重構屬於香港「主體意識」的前提下，才能理解何謂真本土、以至香港之核心價值，卒之決定去留統獨。泛論之，必難以道明，姑且引情狀相類的臺灣以略談—究竟我們「敘述，所以存在；還是被敘述，所以存在」？

Photo Credit: 劉明堂, 何豪毅, 黃謙賢/Taiwan People News

「主體意識」：存在的自我賦予

「主體意識」四字，於香港人，或許陌生非常；一海之隔的寶島，卻心領神會。跳出主權和從屬的非黑即白，擺脫政治角力的制肘，以一地為中心，重新追本溯源，找尋屬於該地原有之文化源頭，並以之為底基，旁及外來的多元文化，肯定一地之獨特性，進而在歷史、文化、經濟上加以闡揚，此之為「主體意識」。惟務須申明者為，主體意識在政治上，往往被外間解讀為「獨立」，實抹黑異見之舉也。前述之主體意識，乃從中性而言，一種自我本位的肯定，一旦就此作政治論述，政見不同者或重新把這拉入黑白二元的困局。臺灣之大漢族主義者，國民黨為首，認為臺灣為中國領土，不可分割，遂誣蔑持論者和民進黨人為伍，即「臺獨」。當然，「主體意識」跟「獨立」貌合，但神離，前者具較大包容性；後者排他性則較明顯，並據主體意識的意涵，採相對極端之論調。礙篇幅所限，不另多贅。

在上述前提下，臺灣自然不是中華民國，該處之落地者乃不折不扣之「臺灣人」。筆者起初也不明所以，在外人角度，臺灣完全跟中華民國劃上等號，而何以謂臺灣人，非為中華民國人？答案在於各人對臺灣「主體意識」的理解。上文就主體意識，淺嘗輒止，也不妨引套之。即是臺灣本來就有不假外求，迥異於別國的文化源頭，甚至民族源頭。最早居於臺灣者，原住民也，諸如泰雅族、阿美族、以及新近認可之拉阿魯哇族等，他們才是臺灣的主人，亦即是臺灣民俗的源頭，其活跡範圍遍及全臺灣，日後族與族之間的生活記憶，成為臺灣主體意識的主要來源。

「我們是臺灣人，不是中華民國人」

文化與歷史的追溯與認知，一直為國民之根本，關乎人民身份之認同。可惜礙於語言隔閡，文字闕如，而且各族尚停留在部落階段，各自為政，主體意識迄自未能凝聚，旋為西方列強所入侵，胎死腹中。直到日治「內地延長主義時期」，有「臺灣孫中山」之稱的蔣渭水、霧峰林家的林獻堂諸人成立「臺灣文化協會」，復興既有文化。臺灣史學家連璜杜撰、首部以臺灣為主角敘述的《臺灣通史》並時出世，始喚醒臺灣人的本土情懷，臺灣的主體意識由是發端。

成也蔣氏，敗也蔣氏，蔣渭水為首之協會，始終秉持着中國國族主義。在打着三民主義植根在臺之口號、復興原住民文化的同時，選擇性排斥部份臺灣的特殊文化，譬如臺灣之傳統劇種「歌仔戲」，雖發祥地是宜蘭，協會認為不值一哂，沒有戮力推揚，觀點反倒較同時代的林呈祿遜色。林則旗幟鮮明，處身日治政府同化政策當道之時，發動「臺灣議會設置請願運動」。簡言之，高度自治也。1928年謝雪紅之臺灣共產黨，政治取態遠比前兩者激進，矢言臺灣徹底獨立。三者相互激宕，60年代的彭明敏某程度上取萃其中，高唱臺灣的主體意識，再據此走上「臺獨」路線。緣是臺灣的主體意識毫無懸念，一連串野草莓、太陽花等本土運動，便從此概念流出。

歷史的「表徵」—「歷史記憶」與「歷史事實」

文化與歷史，關乎人民身份之認同，外來政府欲得政治的合法性，自然要從這兩方面着手，而歷史又有跟文化互為包容的傳統，如是者，篡改人民的「歷史記憶」，由政府取得話語權，敘述人民的「存在」，刻不容緩。論者才疏而孤陋，姑妄引臺灣中央研究院院士王明珂教授之理論，寥作淺解。「客觀存在的史事和文物，足以佐證一段往事之痕跡者，曰『歷史事實』，同時，人類種群，千差萬異，但無一例外，各自傳頌有關本族或本村源起的神話、傳說、靈獸等文化意象，一種主觀塑造自身存在的敘述方式，曰『歷史記憶』。」據王明珂教授之論，即便一河之上、中、下游各有一村，而客觀的材料可證明彼此有非常密切的關係，「歷史事實」也庶幾一致。然，親訪三村，問其傳說而繫乎其村之發軔，竟然大相逕庭，如上游可謂己乃山神之孕、中游道靈獸所生、下游言破石而出，傳說作為「歷史記憶」，決定了三村之分離獨立、生活習俗等，儼然非我族類，縱使「歷史事實」證明三村同源，他們依舊否定。

正因三者有着堅立千仞的自我主觀「敘述」，所以彼此的客觀「存在」便產生不同的分歧和差別。換言之，「歷史記憶」的敘述，會改變「歷史事實」的存在。若執政者有其用心，刻意竄改一地人民的「歷史記憶」，進而變易政權屬外來入侵的「歷史事實」，遂為自己的政權取得合法存在：人民因為「被敘述」，所以才向掌握話語權的人，以附首稱臣的方式「存在」。如此，極為危險。

存在的「被敘述」

上述情況一度發生於臺灣歷史中，最為明顯者，莫如日本和戒嚴時期的中華民國。臺灣史上，當然外來者，有宋朝、清朝時期的中國以及荷蘭，然而，論規模之盛、影響之大，斷然不及日本和中華民國。日本駐臺灣總督兒玉源太郎之副手民政長官後滕新平，於始政時期（1895－1919）已着眼於「歷史記憶」的修改，後來同化時期（1919－1937）進一步提升，皇民化時期（又作皇民化運動時期，1937－1945）則達致高峰。中日八年戰爭，總督小林躋造對當地人的「歷史記憶」大幅竄改，意圖重新打造成「皇國臣民」，使之盡為日本帝國利用，於是推廣國語（日本語）家庭、改姓名運動，臺民改為日本姓名、發展日本神道教，取締台灣傳統信仰、研習日本史等。長此下去，「歷史記憶」的再造勢必令「歷史事實」的臺灣主體意識被消弭，臺灣人形同「被敘述」為日本人，而以「皇民」的方式「存在」。

戒嚴時期（1949－1987）之中華民國與日本只是伯仲之間。蔣介石斯時剛失去中國江山，

(二·二八事件；圖片來源︰未知)

於是擬以臺灣為反攻基地，得以反攻大陸，可戰敗隨蔣抵臺之外省人以及軍隊，紀律敗壞，經濟處理又不善，而本身臺灣人被殖民統治百年之久，蔣亦畏共產黨潛伏臺灣，乃借戒嚴為名，極力打壓一切日治前後的風俗。益有甚者，原住民俱在禁制之列，如學校範圍內，不得用土著語言說話，違者罰款，製造「白色恐怖」，嗣後釀成「二‧二八事件」，戕害冤殺臺灣居民；與此同時，大力推行華夏文化，如將國語定為單一法定語言、修讀中國二千年的歷史等等，臺灣人無疑迎來第二次「歷史記憶」的改造，「被敘述」為中國人，而以「漢人」的方式「存在」。猶幸以上舉措，伴隨日本帝國倒臺、戒嚴時期撤消作罷，彭明敏、施明德等人又重申臺灣的主體意識，讓既有的「歷史記憶」連帶「歷史記憶」得到相當的恢復。儘管國民黨老調重彈，指臺灣為既有領土，亦無阻臺灣人繼承前人真正之主體意識、自我敘述的「歷史記憶」，因此和「歷史事實」契合，而確立以「臺灣人」的「存在」、一種獨立於日本、中國，並和兩者平起平坐之身份。

從未存在過的「香港本土派」

臺灣人還可如此，香港呢？似乎不容樂觀。其主體意識，只有近年，特別雨傘運動失敗後，始有萌芽之象，然，一直拘泥在真、偽本土之別，樞要之主體意識反倒不曾用心。論者不敏，以為主體意識之討論蒙塵，非獨謂時人冷感，實是英國政府刻意為之。蓋香港1842年開埠以先，與中國關係密切，唐軍屯兵、宋帝逃難，皆施於港，細心者，更留意到遠古時代，香港已有人聚居，縱遠古之人，隱歿久渺，莫之能求，惟此種種，悉為香港主體意識的一部分，又適英國作為宗主國，最為忌殫者，無他，慮香港人的主體意識醒覺，省察自身之獨特性，而發現英國僅借武力侵犯此地也，緣此發難，終結英國的殖民統治。

英國乃剛柔並濟，積極拉攏、打壓、分化這種主體意識。中學教育上刻意省略思辨性的哲學、改歷史為選修課，核心課程又以英國史為主，至於有關中國者，別目「中國歷史科」，顯然是受1953中文科檢討委員會報告書（Report of the Chinese Studies Committee）中，對中史教學「不宜過多政治化」的指示影響，香港史之課程，甚至1998年始獲準納入世界史講授課程之一部份。英方此舉，力圖避免惹起港人過多的本土意識，或者意識形態上向中國靠攏，斯時大學教育，仍未普及，故不詳細交待（按：大抵50年代末的香港大學，斯有英人安德葛在歷史系講授開埠以後的香港史，羅香林在中文系之香港史課，則偏重於香港開埠前的歷史），總之，英國漸次改造香港的「歷史記憶」，淡化港人對香港主體意識的理解，相關之體察、考量，自然不成氣候。後來，70至80年代末，英方苦心孤詣下，香港經濟騰飛，卓然成為亞洲四小龍之首，置身紙醉金迷的氛圍，日日絲管，夜夜笙歌，主體意識，落得個無關痛癢。妄論之，現時中國對港的治術，蕭規曹隨，不過主導者由英方換成中方，課程增逸，全然倒置為國族主義為中心思想的論述而已。可憐香港，由始至終，都是「被敘述」，所以「存在」：以英國治民、中國人民的身份「存在」。徒然97回歸挨近、雨傘運動，港人才偶爾思索之。

本土學術？

順帶一提，香港的主體意識，與本土學術不無關係。香港的主體意識一旦廓清，港人便可避免游談無根之弊，何為「真本土派」、「偽本土派」，不攻自破，所以，何去何從，是「統」、是「獨」，端見於此。惜哉香港主體意識的自我論述，在近數年方驟然冒起，而且觸及者，多流於「本土」真偽之皮相，鮮見坊間討論擊中主體意識此要害，更遑論本地學術界了。正當臺灣學者、中央研究院院士杜正勝提出「臺灣地圖左轉90度」論，從學術（歷史觀）角度敘述自身的主體意識，得到廣泛迴響；香港之主體意識，在本土學術之中，迄今未見辯述，或許，源於本土研究多在迎合國際，即學術國際化大潮中，不為大專院校的支持，而遭受消磨、冷落，民間更是和聲罕聞。香港的主體意識，乃被中國、香港政府取得話語權，橫加敘述。

人言人殊。這篇文章，追求獨立者或可以謂之提示香港底基的彌補，國族主義者可以貶損為鼓吹獨立，無論何者，一則此文影響力並沒有如斯可觀，二則「身份認同」的而且確須要釐清，拙文之要旨，即建基於「香港人」與「中國人」的身份平等而互不排斥的情況，思索我們當如何敘述自己的「存在」。以上之論，殊為鄙見，商榷之處，前輩同業，望加指證。