Emily Lau vs Stephen Lam

Exercising her right – and fulfilling her duty – as a legislator to hold the executive branch to account, Emily Lau on Wednesday asked Secretary for Mainland and Constitutional Affairs Stephen Lam to answer three questions.  The questions were submitted in writing ahead of time, and the answers delivered orally.  To make what would otherwise be a dry and dreary exchange intensely fascinating, I will present them here as a live cross-examination, using ‘plain English’ versions of the questions in green, but leaving Lam’s carefully, if not tortuously, drafted replies as they were. The original, full text is here.

Thanks to the venerable traditions of English common law, defendants and witnesses in court can refuse to answer questions on the basis that they cannot be required to give evidence against themselves.  Lam is more or less taking this tack, though he has to avoid incriminating government in general – not just Hong Kong’s but the nation’s.

Also thanks to our legal heritage, anything not specifically banned by law is permitted.  The Hong Kong Basic Law is silent on the subject of (or ‘does not provide for’) referendums; thus there is no constitutional bar to the holding of such a poll should the local government ever want to hold one.  But mainland officials have declared that a referendum is indeed illegal.  Under their system, the meaning of a law’s wording is flexible and decided on a case-by-case basis by the same leadership that holds ultimate power over all branches of government.  Ask Liu Xiaobo.

Essentially, Emily Lau is trying to force Stephen Lam to say either that Beijing officials are wrong, or Hong Kong’s traditional legal principles have been abandoned.   Lam is cunningly evasive or willfully obtuse, according to taste:

Lau Are the pro-democrats who claim to be holding a referendum in the form of by-elections breaking the law?  If so, how?

Lam Under “One Country, Two Systems”, the HKSAR must comply with the provisions of the Basic Law. Conducting a so-called “referendum” on the issue of constitutional development is not consistent with the provisions relating to amendments to the electoral methods for the Chief Executive (CE) and the Legislative Council (LegCo) in the Basic Law and the interpretation and decision of the Standing Committee of the National People’s Congress (NPCSC).

Lau Doesn’t the common-law ‘you can do anything not prohibited’ principle mean that Hong Kong may in fact hold a referendum?  You have checked, right?

Lam The Basic Law does not provide for any “referendum” mechanism. As a local administrative region of the People’s Republic of China, the HKSAR has no authority to determine or change its political structure on its own, or to create a “referendum” mechanism.

Lau Beijing says the pro-democrats who resigned have broken the law, so waddya gonna do about it, weasel boy?

Lam The Basic Law does not provide for any “referendum” mechanism. Conducting any form of so-called “referendum” in Hong Kong will have no legal basis or effect whatsoever, and will not be recognised by the HKSAR Government…

The nearest Lam seems to get to answering any part of the questions is when he says that Hong Kong “has no authority to … create a ‘referendum’ mechanism.”  But this is simply restating the obvious point that it is not mentioned in the Basic Law.  Hong Kong’s government similarly has ‘no authority’ to mount a public consultation exercise on vacuous constitutional reform proposals, appoint sycophants to the position of Justice of the Peace or put posters everywhere telling us to take care of our old folks’ teeth, but they still do it.

On a brighter note, Lam deserves credit for not once using the phrases ‘move ahead’ or ‘the way forward’ (as in “the government and the majority of the community wish to move ahead and find a consensus on the way forward”).  These expressions invariably refer to popular opposition to a policy proposal that is subject to a public consultation process rigged in order to arrive at the government’s predetermined decision.  Their absence on this occasion is a refreshing ray of sunshine.

It might be hard to believe that anyone would be moved to write a song about our Secretary for Constitutional and Mainland Affairs, but behold: Sharing Out Stephen Lam’s [monthly] HK$300,000 Salary by My Little Airport.

Meanwhile, Hong Kong’s Department of Countdowns to Special Events unveils a special countdown clock to mark the 88 days before the exciting Shanghai World Expo.