January 21, 2004


I am not a lawyer. I am thankful for that. However living in Hong Kong inevitably exposes you to legal issues because what passes for political discourse in this city revolves around a seemingly simple piece of law. The Basic Law is, in theory, Hong Kong's constitution. It was negotiated between the British and Chinese prior to the handover in 1997 as a way of assuaging British guilt at not introducing democracy to the place in the couple of hundred years they ran it. Like most such documents there is a mix of the bland and ambigious, designed to make it an uninteresting as possible. However it has become an important document to base the aspirations of Hong Kong's democracy movement.

For example, Article 45 in full reads

The Chief Executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People's Government.

The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.

The specific method for selecting the Chief Executive is prescribed in Annex I "Method for the Selection of the Chief Executive of the Hong Kong Special Administrative Region". (my emphasis)

Annex I and II specifies the interim method of selecting the Chief Executive (only in Hong Kong is the head of Government called CEO) and the Legislative Council. Each Annex finishes with the same rules for changing them from the muddle they currently are:
If there is a need to amend the method for selecting the Chief Executives for the terms subsequent to the year 2007, such amendments must be made with the endorsement of a two-thirds majority of all the members of the Legislative Council and the consent of the Chief Executive, and they shall be reported to the Standing Committee of the National People's Congress for approval.


With regard to the method for forming the Legislative Council of the Hong Kong Special Administrative Region and its procedures for voting on bills and motions after 2007, if there is a need to amend the provisions of this Annex, such amendments must be made with the endorsement of a two-thirds majority of all the members of the Council and the consent of the Chief Executive, and they shall be reported to the Standing Committee of the National People's Congress for the record.

Reading the English it seems simple: after 2007 both the LegCo and Chief Executive method of selection can be altered by a 2/3s majority in the (rigged) LegCo with approval from the Chief Executive. The NPC (China's Parliament), in theory, has the right to have the decision "reported...for approval" and "for the record."

Problem is China has realised they don't want Hong Kong to be too democratic. It would look like the Central Government is giving in to the voice of the people (500,000 marchers back in July and smaller protests since). It would give the people a voice. It would be the thin edge of the wedge. So the PRC does what anyone in their situation would: they slam the door. From the SCMP

After a week of dominating Hong Kong headlines, two leading mainland legal experts on the Basic Law return to Beijing today having delivered a clear message: go slow on constitutional change. They told the city in no uncertain terms it cannot elect the chief executive by universal suffrage by 2007. Think about 2030 or 2040 instead, they said.

While former Basic Law drafter Xiao Weiyun and jurist Xia Yong say they do not represent the central government, their view that Hong Kong can only contemplate introducing universal suffrage after 2030 is believed to reflect official thinking. Analysts say their visit has been arranged to informally articulate the central government's position ahead of a visit to Beijing by a Hong Kong government taskforce on political reform, and to dampen aspirations for more rapid democratisation.


The mainland experts reiterated Beijing had a decisive say in Hong Kong's political development. At a public forum yesterday, Professor Xiao said the Basic Law drafters never considered election of the chief executive by universal suffrage in 2007. Referring to Article 45 of the Basic Law, which says the chief executive will ultimately be elected by universal suffrage, Professor Xiao said it meant this would be achieved in the final stage of the 50-year lifespan of "one country, two systems". But, he said, "it did not necessarily mean that it would not be achieved until the 2030s or 2040s, or [that] it was not allowed in the 2020s".

The Basic Law says the methods for electing the chief executive and Legislative Council should evolve in light of the "actual situation" in Hong Kong, and in accordance with the principle of "gradual and orderly progress".

Democracy isn't Asia's forte. It appears the People's Republic isn't too happy about HK leading the way. No matter what it says in black and white.

The ultimate aim is the selection of the Chief Executive by universal suffrage. Ultimate being within the next 4000 years or so.

Posted by HK Simon at 10:00 PM | Comments (2)

January 12, 2004

Is That a Regulation Banana in Your Pocket


From "The fruit police" by Roger Kimball at The New Criterion's weblog, Armavirimque:

"David told us how his family had been planting a certain type of potato for decades at their farm in Wales: no more. The EU ministers decreed that type of spud verboten. They had rules for hedges, lawns, sausages, and comestibles of every sort. It became a crime to sell a pound of . . . well, of anything: one had to adopt the metric system or go to jail. Bananas that deviated too much from the perpendicular were illegal. I am not sure what happened to bananas that were overly curvaceous: perhaps they were required to take Pilates.

It all seemed so . . . absurd. And so it was. Unless you were caught selling pound of beef or a bendy banana.

I had more or less forgotten this episode until my friend sent me an article from the December 19 issue of the London Times. The headline tells the tale:

Why is this banana legally curved instead of just crooked?
Because it is the fruit of the finest judicial minds in Europe.
Unfortunately, the article is available on-line only for a fee, but here is the gist:
GOODBYE bendy bananas. Farewell curved cucumbers. So long chunky carrots. The European Union has finally triumphed in its quest to tame nature and keep unusually shaped fruit and vegetables off our shop shelves.
The House of Lords yesterday ordered greengrocers across the country to obey every EU horticultural regulation passed over the past 30 years concerning fresh produce and conform to the myriad of rules covering size, length, colour and texture.

The law lords rejected the argument, put forward by the supermarket Asda, that a legal blunder in 1973 had made the EU laws unenforceable. Now greengrocers will have to ensure that under EU regulation 2257/94 their bananas are at least 13.97cm (5.5in) long and 2.69cm (1.06in) round and do not have "abnormal curvature", as set out in an eight-page directive drawn up in 1994.

The ban on bendy bananas was necessary, according to an EU Commission official at the time, to prevent them from being mistaken for a "bicycle wheel".
I have often had occasion to quote Tocqueville's warning about the process of "democratic despotism," which proceeds by extending
its arms over society as a whole; it covers its surface with a network of small, complicated, painstaking, uniform rules through which the most original minds and the most vigorous souls cannot clear a way to surpass the crowd; it does not break wills, but it softens them, bends them, and directs them; it rarely forces one to act, but it constantly opposes itself to one's acting; it does not destroy, it prevents things from being born; it does not tyrannize, it hinders, compromises, enervates, extinguishes, dazes, and finally reduces each nation to being nothing more than a herd of timid and industrious animals of which the government is the shepherd.
Of course, the behavior of the EU does not conform exactly to Tocqueville's scenario. To be sure, it covers the surface of society "with a network of small, complicated, painstaking, uniform rules"--the last time I checked there were 185,000 pages of rules and regulations; the EU "does not tyrannize, it hinders, compromises, enervates, extinguishes, dazes" and so on. But Tocqueville was talking about democratic despotism, and the EU presents the novel spectacle of its bureaucratic, or soft-totalitarian alternative. It is (so far) less brutal, but no less infantilizing, no less an enemy of freedom.
It may seem silly to get worked up about bananas; edicts about potatoes may seem like small potatoes. Does it really matter that one's favorite sausage or cheese is now deemed illegal? The EU has declared "racism" and "xenophobia" crimes--but who in his right mind would wish to express racist or xenophobic attitudes? Exactly what are racist or xenophobic attitudes? Well, that's for the ministers in Brussels to determine. You don't like that? A pity, because, if you're a European, you're stuck with it. The ministers are not elected by you, they are appointed by each other. They meet in secret. They issue diktats that affect the lives of the whole European Community. Once upon a time, you could have criticized this sort of tyranny, but the ministers in their wisdom have decided that dissent is unprogressive. Consequently, it is illegal for journalists to criticize the decisions of the EU. Is that an infringement on the right of free speech? Who said anything about a right to free speech? This is the new, multicultural Europe. Health care and welfare and an early retirement for everyone. And a 35-hour work week. Want to work longer hours? That's a crime too."

Read it all here.

Posted by Noel at 01:15 AM | Comments (11)

December 20, 2003

Soverign Law for a Sovereign People

It seems to me that some people love the idea of World Government more that they value the protection of Liberty; as if Government itself is the goal and Freedom will (hopefully?) flow from there.

A recent effort/suggestion by the UN to register all firearms worldwide(!) reminds me of something I've wanted to say for a long time about how to read the single sentence of the Second Amendment;

"A well-regulated militia, being neccessary to the security of a free State, the Right of the People to keep and bear Arms, shall not be infringed."

As you can see, by reading an experts examination of the sentence HERE, an accepted interpretation (at least among those who can decipher plain English) is would be: "Since the State needs a militia for it's security, and the militia is comprised of all able men of a certain age group, the people need a secure right to bear arms."

Of course, as made clear in the above link, the 2nd Amendment does NOT a) restrict that Right to be protected only if the 18th century structure of State militias remains in practice, or b) reserve the Right only to members of a State militia...as many gun-grabbers like to argue. The militia is invoked only as one example of why the Right is protected.

So, anyway, here is my suggested additional interpretation:
"Since the State must, for the sake of it's security, neccessarily have a standing militia, the People also must have a Right to bear arms for the sake of their security."

Read the 2nd Amendment again with that interpretation in mind. You will see, I hope, that it is just as legit. It's just another way of saying "If all firearms were in the hands of the State, then the last means of removing tyranny would be gone."
The rationale that a well-armed Citizenry is the last line of the defense of their Liberty is not only sound, it is consistent with everything we know about the intent of the Founders.

For example, James Madison wrote in Federalist 46:

"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of."

Madison was not refering to the ambitions of a foreign State, but of the Federal Government of the United States.
Yes, he's writing about the power of the States, through an armed militia, to secure our Rights. But I insist that the Right of the People to take up arms -- even independent of the States -- against a tyrant is implied.

Wha..? Yep. Because what is being defended are the Rights of the People, not the State. (People have Rights. States have powers; limited by Law and granted by the Governed.)
Madison compared the prospects of a well-armed American people to securing their Rights with that of the subjects of European tyrants, then and now:

"Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.

"And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

"Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors."

Don Corleone said in the Godfather, "I keep my friends close, and my enemies closer."
The principles of Federalism -- the philosophy that authority is best kept as local as possible -- is the best way to ensure that a powerful centralized government wont even be in a position to become tyranical.

The UN -- largely an assembly of governments that fear allowing their People to own guns for their own defense -- wants us to register our firearms with Them. If we value our Freedom and our sovereignty, and our ability to secure them, going along with their little plan would be unhealthy, unwise, and, dag gummit, unAmerican.

Posted by Tuning Spork at 12:25 PM | Comments (4)

December 19, 2003

When Trans-nationals Conspire

"For the tranzis, the problem of rogue or abusive governments is not that such governments are too powerful and/or insufficiently accountable to their own citizen/subjects. After all, the source of legitimacy for this lot is not the consent of the governed; rather legitimacy can apparently only be conferred from above. Thus, the creation, from whole cloth, of international institutions such as the UN or International Criminal Court, so that there is a higher, transnational, authority to judge and confer legitimacy on the doings of national governments."

"Of course, being made answerable to the "international community" (read: other governments) comes at the cost of being accountable to your own citizenry. This is the reason that the whole tranzi project is fundamentally corrupt, and corrupting. In my book, consent of the governed is the only source of legitimacy. Period. Discussion over. Turn out the lights as you leave. The tranzi project is corrosive of the consent of the governed, because it substitutes the consent of other governments for the consent of the governed."
Robert Clayton Dean at Samizdata.

Posted by Noel at 07:23 PM | Comments (1)

December 15, 2003


"...But the problem, my dinner companion argued, wasn't the vision of a mega-bureaucracy. The problem was the cowardice of politicians who were afraid to make decisions their countrymen might despise. Asking the citizens of these countries what they want is a mistake, he said. "Voters are stupid. They always vote their prejudices." The European leaders were happiest with no decision at all."

"I wondered aloud if maybe getting the consent of the governed before changing who governs them might not be a good idea. That was obviously a dangerous notion. "For something as complex as the EU, it doesn't make any sense to ask their opinion," my friend said. Who would expect the common man to understand something as heavy going as the draft constitution? "Besides," he added, passing a bromide across the table, "that's why they elected representatives to make these decisions for them.""

Denis Boyles at NRO.

Posted by Noel at 08:28 PM | Comments (0)