China’s Hong Kong at 20

‘Yahapalanaya’ Ministers appear not to be different to their predecessors in office in that sense, excepting of course the Mahinda Rajapaksa regime (in its second term) which stood in a distinct and crude category of its own. But if one takes those aberrant years out of the equation, the current politicians are certainly as ridiculous in their fury as those of say, the Kumaratunga Government, for instance.

By itself, that is little surprise. Many familiar faces cling like limpets to political office through the years regardless of the change of guard in Colombo. Their ability to skillfully switch sides as soon as they get a whiff of the political winds of fortune changing is nothing short of remarkable. It appears to be the one thing that Sri Lankan politicians are really good at. This is true also of relatively new entrants to the political arena whose skills in learning the tricks of the trade from their disreputable elders are pronounced.

So our politicians strut and pontificate as if they are the final authorities on any given subject under the sun and woe betide anyone who challenges that authority. This disagreeable trait is evidenced across a range of portfolios, ranging from sports to justice. Last week, this column ventured on a topic rather different to its usual theme, namely the Minister of Sports’ unseemly public outbursts that the paunches of Sri Lanka’s national cricketers were responsible for their poor performances at the game.

Crucifying of the outspoken

Even if the kindest interpretation is given to the ministerial outburst and the concerns stated are justifiable, are these questions that should be publicly ventilated? Are these not matters to be resolved internally without demoralizing the national team? In what conceivable scenario can sportsmen or sportswomen play at highly competitive games under the glare of millions when there is such blatant political undermining of their performances?

The crucifying of those who are outspoken is not unique to the game of cricket. We see this in other sports, professional fields or public administration. In turn, there is the rise of the grotesquely mediocre whose only skill is in pandering to political whims and fancies. The impact of this gradual deterioration is now being felt. Certainly it will worsen in time to come.

Indeed, there is a larger question in issue. Cricketer Lasith Malinga’s punishment for stating that monkeys should not enter the nests of parrots to mess around (impliedly referring to the Minister of Sports even though no direct reference was made therein) was reportedly based on his making statements to the media in breach of his contract with the Sri Lanka Cricket Board.

Constitutional protection ‘trumps’ unjustifiable restrictions

This leads to an interesting question of freedom of speech by itself. A recent judgment of Sri Lanka’s Supreme Court may be instructive here. In Pelaketiya vs Secretary, Ministry of Education and others (SCM 28.09.2016), the Court (per Anil Guneratne J) ruled that the Constitution ‘trumps’ the prohibition in the Establishments Code that “the mass media should not be used as a means of criticism of the Government or other Government Institutions or to ventilate departmental grievances”.

The case concerned a female teacher who had been sexually harassed by her superiors and who had, in the absence of any other relief, spoken to the media regarding her travails. She was then interdicted on the basis that she had given an interview to the media and aired her views regarding an official inquiry contravening the Establishments Code. Rejecting this view, the Court opined that freedom of speech is essential for the proper functioning of the democratic process, pointing out that public opinion plays a crucial role in modern democracy and is of great importance.

It was obvious here that the predicament of the teacher, trapped in a desperate plight as it were, occasioned the empathy of the Court. The circumstances exemplified in the case are of peculiar application no doubt. But the principle judicially articulated therein is of general importance. A law or a contractual document which unjustifiably denies freedom of speech to an individual will not stand up to the constitutional test.

Right of legitimate criticism

This is not a new principle in our jurisprudence. Reflecting on the Pelaketiya case in these column spaces some months ago, I pointed to the norm-setting decision in the mid nineties when the arbitrary stopping of a state radio programmme on the basis that it ‘caused public unrest’ was declared to be unconstitutional by the Court. In the words of (the late) Justice MDH Fernando declared “…it is well to remember that the media asserts, and does not hesitate to exercise, the right to criticise public institutions and persons holding public office…such criticism must be deplored when it is without justification, (but) the right to make and publish legitimate criticism is too deeply ingrained to be denied.’

Unfortunately these ministerial outbursts are becoming more and more common. The Minister of Justice’s threat to disbar a lawyer, Lakshan Dias who had referred to attacks on Christian places of worship during a televised programme is another such instance. The more sensible among us would probably agree that attacks on religious places generally leading to inflamed tempers are not casual matters to be airily and flamboyantly tossed around before television cameras. Greater caution may have been in order.

But that does not mean that the Justice Minister’s intemperate outburst can be tolerated. In the first instance, the Minister should be asked to look at his law books and understand the importance of the separation of powers. The disbarment of lawyers is a peculiarly judicial function, not within executive powers.

Indeed ‘Yahapalanaya’ politicians would do well to listen to their own flowery assurances when they campaigned to come into power more than two years ago. Hopefully they might feel slightly ashamed if they did.

LONDON – While I was Governor of Hong Kong, from 1992 until the handover of the city to China in 1997, I kept a diary. Consulting that diary over the last few months, as I write a book partly about my experience there, I have discovered several passages describing China’s “struggle” school of diplomacy – one that endures even today, as we approach the 20th anniversary of Hong Kong’s return to Chinese sovereignty.

In China’s struggle school of diplomacy, no decision could be confirmed without a protracted argument with Chinese Communist Party (CCP) officials. That argument ended only when it became clear that the Chinese could squeeze no other concessions out of those on the other side of the table. Time, Chinese negotiators seemed (or pretended) to believe, was on their side, so they could always wait out their opponents.

It was often difficult to see the point of the whole miserable exercise. Why, for example, push up the price of a new airport for Hong Kong by delaying its construction? I suppose the Chinese authorities preferred that the project be completed when China, not the United Kingdom, was responsible for the city.

Another example of this bullying approach concerned the arrangements for the handover itself. China made a number of proposals that, had we not resisted them, would have allowed its army to sweep into Hong Kong well before June 30, 1997, the agreed handover date.

The Chinese also pushed hard to make the handover ceremony itself a humiliation for Britain. They wanted the Prince of Wales, the principal British representative at the ceremony, to pay court to China’s president (though they did not demand that he bow before handing over the keys to the city).

Here, too, we held firm, eventually agreeing that China’s president and the Prince of Wales would enter a room at the same time. The president made a short formal speech, to which the prince and British Prime Minister Tony Blair offered impromptu responses. With a flurry of handshakes, everyone departed and that was that. It was not the kind of ceremony that should have taken such pains to plan, particularly given that the Chinese had nothing substantial to say; yet, as was so often the case, it was the product of a struggle.

Chinese negotiators’ obstreperousness might be somewhat palatable if the agreements that resulted were ironclad. But contrary to the perceptions of many – including those to whom I have spoken about China’s struggle diplomacy – evidence suggests that Chinese authorities do not necessarily keep their word.

Consider China’s accession to the World Trade Organisation. During the negotiations, in which I was involved, China promised to open its market to the rest of the world. But it has done so only slowly – far more slowly than other countries opened their doors to Chinese exports and investment. More broadly, the CCP connived to create a sloping playing field – just ask any foreign chamber of commerce in Beijing.

It probably seems hypocritical for a Western politician to criticise emerg- ing powers for untrustworthiness, at a time when the president of the United States – once the leader of the West – is the shockingly undependable Donald Trump. With moves like withdrawing the US from the Paris climate agreement, Trump has shown that he can be trusted no further than he can be thrown.

But that will change, when Trump, sooner or later, is swept into the ashbin of history. The same cannot be said for the Politburo Standing Committee – the CCP’s top leadership body – which outlasts any one leader. As China becomes an increasingly important player in global affairs, the rest of the world would do well to recognise the possibility of unreliability, or even deception, by its leaders.

An important test of China’s reliability will play out in the next few years in Hong Kong. The shift in sovereignty from Britain to China was based on the “joint declaration” between the two countries concluded in the mid-1980s. This document, an international treaty lodged with the United Nations, guaranteed that Hong Kong’s autonomy and way of life would be safeguarded for 50 years, or until 2047.

So far, things are not going quite as planned. Despite having largely respected the agreement during the first few years after the handover – though it rather quickly started dismantling the arrangements for ensuring democratic accountability – China’s grip on Hong Kong has tightened considerably.

Indeed, far from implementing democratic reforms, China has threatened the rule of law, the independence of the judiciary, and the autonomy of Hong Kong’s universities. It has also made not-so-subtle attempts to curtail freedom of the press. Hong Kong residents have been abducted and taken across the border to face the “rule of law” on the CCP’s terms.

The CCP seems to think that after 20 years, the outside world won’t care what happens in the former British colony. The people of Hong Kong, meanwhile, increasingly have to wonder whether China will respect their city’s rights – or squeeze its windpipe.

To be sure, Hong Kong remains one of the freest cities in Asia, not least because of the pride its residents take in their status as Hong Kong Chinese. They are patriots, who believe not in Communist authoritarianism, but in pluralism and the close connection between personal freedom and prosperity.

President Xi Jinping would do well to take the opportunity offered by the handover’s 20-year anniversary to reaffirm China’s commitment to the joint declaration – and then to follow through on that affirmation. As for the rest of the world, we should watch closely what happens in Hong Kong. If China’s leaders break their word in Hong Kong, how can we trust them in other areas?

(The writer is the last British governor of Hong Kong and a former EU commissioner for external affairs and is Chancellor of the University of Oxford.)

Courtesy: Project Syndicate, 2017. www.project-syndicate.org