I sigh too but well, maybe Dawes decided that the best way to retain some substantive independence, protect its members and functionality is to mouth some pro-Beijing slogans. We do live in tough times.
It may also be an overcorrection in response to Beijing's previous temper tantrums. To give Beijing its legitimate due, from its point of view, the Common Law trained lawyers of the HKBA don't have a good (or perhaps even basic) understanding of the Continental Law system in general, let alone China's. Thus they are not arguing from a position of technical expertise. Yet their Unexpert statements are going to be treated like gospel by the rest of the world, and even to criticize or correct them will only bring more blowback from "the West".
As an example, it's not hard to see the error in Harris' statement. First, as far as Beijing is concerned, the NSL Is Fine. It strikes an appropriate balance between the Individual and the State (they insist), at least for Hong Kong's present and near future conditions. But this one wasn't the primary problem. It received to my memory a more moderate reception, with a Chinese commentator basically saying "It won't happen in the near future" but without furore.
Second, more clear-cut and importantly from a legal viewpoint, Harris' statement reads like he thinks the Hong Kong government can just amend the National Security Law on *its* initiative. That crossed the line.Even if the Hong Kong Government is convinced the NSL is wrong, even if it is *objectively* wrong, the HKSAR has no right to amend a law passed by the National People's Congress, a superordinate body. This is beyond Common vs Continental Law, this is a failure to acknowledge universal rules of hierarchy, of superordination and subordination. That's why it is a "blatant challenge" to the Constitutional Order, and why it cannot be justified as a statement made from a technical-expert's viewpoint (because its content is so Unexpert).
Yet, we all know what would (and did) happen. Harris' statement is treated as gospel. Any attempt to counter it is treated as oppression. Both become part of the evidentiary stack supporting any new waves of criticisms or even sanctions.
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Re Article 22, a Beijing reader would probably first note how Hong Kong is "under the Central People's Government" has been cleanly excised from the HKBA's description of Article 12. Next, Article 22 is claimed "to prohibit interference in the internal affairs of the HKSAR by any part of the CPG", which if true will kind of defeat the "under the Central People's Government" part in Article 12.
As written out, Article 22 says "No department", not "No part". So, the CPG proper (State Council), a group of maybe ten elite men running all of China, may interfere, whether Hong Kong likes it or not. The question becomes a non-department that's not the CPG proper can have the right to interfere, and if so, whether the LOCPG is a "non-department".
The Beijing reader will argue that the LOCPG is indeed NOT a department in Chinese law, because it differs from a department in important respects. It has no right to issue administrative regulations. It is not an administrative subject - a subject being an entity being able to bear responsibility. In essence, it is a much weaker organization, with correspondingly looser personnel rules (department heads are decided by NPC, while these "non-departments" can be decided by the State Council). There are a number of other different offices serving the State Council, governed by extant, non-HK specific rules - the LOCPG is just an application of these rules.
which is IMO, the best defense they managed to make for that entire affair to my mind. At least it makes sense and it passes the "Doesn't smell like you invented this two days ago" test. You can still argue against it. You can say increasing the list of possible interferers from 10 to 300 would have the consequence of greatly increasing the amount of possible or probable interference to a level well in excess of the legislator's initial estimate. But it raises the score from Invalid to Colorable, and when viewed from a legal frame that has centralized control as a starting point (Unity state and all that) and isn't as worried about top-level over-reach, it may even be a winning argument.
So, from Beijing's POV, the HKBA's view is not legally correct and made from a position of non-expertise. They either are ignorant or in contempt of how Chinese law defines a "department" (which would probably be considered basics to a professional in Chinese law) - it's not even considered in the document! Yet again, it is their narrative that dominates and is used as a basis for the West's punitive actions.
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That must have seemed rather political. There's no need to agree with them on every issue to acknowledge that these things have happened.
Thanks indeed for your effort!
I sigh too but well, maybe Dawes decided that the best way to retain some substantive independence, protect its members and functionality is to mouth some pro-Beijing slogans. We do live in tough times.
It may also be an overcorrection in response to Beijing's previous temper tantrums. To give Beijing its legitimate due, from its point of view, the Common Law trained lawyers of the HKBA don't have a good (or perhaps even basic) understanding of the Continental Law system in general, let alone China's. Thus they are not arguing from a position of technical expertise. Yet their Unexpert statements are going to be treated like gospel by the rest of the world, and even to criticize or correct them will only bring more blowback from "the West".
As an example, it's not hard to see the error in Harris' statement. First, as far as Beijing is concerned, the NSL Is Fine. It strikes an appropriate balance between the Individual and the State (they insist), at least for Hong Kong's present and near future conditions. But this one wasn't the primary problem. It received to my memory a more moderate reception, with a Chinese commentator basically saying "It won't happen in the near future" but without furore.
Second, more clear-cut and importantly from a legal viewpoint, Harris' statement reads like he thinks the Hong Kong government can just amend the National Security Law on *its* initiative. That crossed the line.Even if the Hong Kong Government is convinced the NSL is wrong, even if it is *objectively* wrong, the HKSAR has no right to amend a law passed by the National People's Congress, a superordinate body. This is beyond Common vs Continental Law, this is a failure to acknowledge universal rules of hierarchy, of superordination and subordination. That's why it is a "blatant challenge" to the Constitutional Order, and why it cannot be justified as a statement made from a technical-expert's viewpoint (because its content is so Unexpert).
Yet, we all know what would (and did) happen. Harris' statement is treated as gospel. Any attempt to counter it is treated as oppression. Both become part of the evidentiary stack supporting any new waves of criticisms or even sanctions.
=
Re Article 22, a Beijing reader would probably first note how Hong Kong is "under the Central People's Government" has been cleanly excised from the HKBA's description of Article 12. Next, Article 22 is claimed "to prohibit interference in the internal affairs of the HKSAR by any part of the CPG", which if true will kind of defeat the "under the Central People's Government" part in Article 12.
As written out, Article 22 says "No department", not "No part". So, the CPG proper (State Council), a group of maybe ten elite men running all of China, may interfere, whether Hong Kong likes it or not. The question becomes a non-department that's not the CPG proper can have the right to interfere, and if so, whether the LOCPG is a "non-department".
The Beijing reader will argue that the LOCPG is indeed NOT a department in Chinese law, because it differs from a department in important respects. It has no right to issue administrative regulations. It is not an administrative subject - a subject being an entity being able to bear responsibility. In essence, it is a much weaker organization, with correspondingly looser personnel rules (department heads are decided by NPC, while these "non-departments" can be decided by the State Council). There are a number of other different offices serving the State Council, governed by extant, non-HK specific rules - the LOCPG is just an application of these rules.
Reference:
https://news.mingpao.com/pns/%e8%a7%80%e9%bb%9e/article/20200422/s00012/1587495064787/%e6%9d%8e%e6%b5%a9%e7%84%b6-%e7%90%86%e8%a7%a3%e4%b8%ad%e5%9c%8b%e8%a1%8c%e6%94%bf%e6%9e%b6%e6%a7%8b-%e5%85%a9%e8%be%a6%e9%9d%9e%e3%80%8c%e9%83%a8%e9%96%80%e3%80%8d
which is IMO, the best defense they managed to make for that entire affair to my mind. At least it makes sense and it passes the "Doesn't smell like you invented this two days ago" test. You can still argue against it. You can say increasing the list of possible interferers from 10 to 300 would have the consequence of greatly increasing the amount of possible or probable interference to a level well in excess of the legislator's initial estimate. But it raises the score from Invalid to Colorable, and when viewed from a legal frame that has centralized control as a starting point (Unity state and all that) and isn't as worried about top-level over-reach, it may even be a winning argument.
So, from Beijing's POV, the HKBA's view is not legally correct and made from a position of non-expertise. They either are ignorant or in contempt of how Chinese law defines a "department" (which would probably be considered basics to a professional in Chinese law) - it's not even considered in the document! Yet again, it is their narrative that dominates and is used as a basis for the West's punitive actions.
=
That must have seemed rather political. There's no need to agree with them on every issue to acknowledge that these things have happened.
spot on!