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Only one outcome when losses mount up

Hong Kong, 6 April 2022: When American football coach John Ralston stood down from the Denver Broncos in 1976, he told reporters: “I resigned due to illness and fatigue – the fans were sick and tired of me.” Carrie Lam, of course, doesn’t do humour, and this week she simply cited family reasons for not seeking a second term as Hong Kong’s Chief Executive. Whatever. In politics, as in sport, you are judged on your results.

Carrie insists she made up her mind more than a year ago and informed her bosses in Beijing then. Given what had transpired during the 2019 civil unrest, she may have been on borrowed time already. No matter, her administration’s chaotic response to the Omicron wave of Covid-19 infections these past three months has shredded what was left of her reputation.

Even in her Waterloo moment on Monday, Carrie’s messaging was characteristically off-note, insisting the “most important attribute” for a Chief Executive was understanding their dual accountability to both the Hong Kong people and central government. I’m sorry, but that’s a given, and has been since 1997. What the long-suffering citizens of this deeply divided city desperately need is a leader who can unite and inspire, govern by consensus rather than confrontation, and act decisively in the best interests of the community as a whole. In short, someone who isn’t Carrie.

This monumental task now falls to her No.2, John Lee, the former policeman who was, until last summer, Secretary for Security. His star has risen quickly. He will almost certainly be the only candidate when the Chief Executive election is held on 8 May. I confess I shall be watching from afar, having departed Hong Kong two nights ago for an extended trip that starts in Australia (with a much-needed Formula 1 fix in Melbourne this weekend) and will include visits to Switzerland and the UK.

It’s been a newsworthy few days. Before her big announcement, Carrie had to deal with the high-profile resignations from Hong Kong’s Court of Final Appeal of Lords Robert Reed and Patrick Hodge, respectively President and Vice-President of the UK’s Supreme Court. They were previously among 12 overseas jurists sitting in our top court as non-permanent judges.

Lord Reed stated our city’s legal system would continue to be internationally respected for its commitment to the rule of law. However, after discussions with the UK government, he had concluded “the judges of the Supreme Court cannot continue to sit in Hong Kong without appearing to endorse an administration which has departed from values of political freedom, and freedom of expression, to which the justices of the Supreme Court are deeply committed”.

As his comments make plain, these resignations were political, made at the behest of the UK government. Carrie was accurate (yes!) in her response, noting that foreign judges were only asked to swear to uphold the Basic Law, bear allegiance to Hong Kong and serve its people: “We have never said, or required them to support the executive branch, or endorse its policies and measures.”

The news was met with widespread dismay. The Hong Kong Bar Association and Law Society of Hong Kong both expressed “deep regret”; Senior Counsel and Executive Council member Ronny Tong wished the pair had shown more “backbone” to resist pressure from politicians; former Chief Executive CY Leung, meanwhile, did not hold back, calling the judges’ departure “a permanent stain” on Britain’s judicial independence. Thankfully, the resignations have not had a knock-on effect. The remaining 10 overseas judges in the Court of Final Appeal – six from the UK, three Australians and a Canadian – are all retired jurists, meaning they are not bound by decisions made by their governments, and have confirmed they are staying on.

Lost amid the rancour was a significant ruling in Hong Kong’s High Court on the same day as their lordships’ resignations. Mr Justice Russell Coleman dismissed a judicial challenge against the government’s vaccine pass scheme filed by a citizen who questioned the effectiveness of vaccination in containing the spread of Covid-19 and who refused to be inoculated herself. While declaring the vaccine pass to be a legitimate measure to protect public health, the judge had some withering words for Carrie and Co:

“There may well be room for people to say that a number of decisions and announcements made by the HKSAR Government relating to the Covid-19 pandemic have seemed to be: lacking in logic or common sense; riddled with inconsistencies; short on empathy and human understanding; detached from local personal and business realities; focused on distractions, hence being reactive to what seems urgent at the expense of being proactive to what is important; blind to the need for a coherent longer-term strategy and contingency planning and the clear public communication of it; and sometimes even apparently contrary to the very ‘science’ which is invoked to justify them.”

Ouch! Not only painful reading for this administration but also, I submit, as compelling an example of judicial independence as you could wish for. Our legal system remains robust and durable.

In closing, I should highlight more wise words, this time from a local businessman who has offices in the same building as BC&C. As we shared a lift on Monday evening following Carrie’s big news, he sagely remarked: “You know, we should give her some credit. Finally, she has succeeded in uniting Hong Kong’s entire population.” Too true, my friend, although we are all suffering illness and fatigue.

Stay safe and well, everybody!

Colin Cohen
Senior Partner
Boase Cohen & Collins

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