Remarks by Kurt Tong, U.S. Consul General
Mandarin Oriental Hotel, Hong Kong
November 7, 2017
(As prepared for delivery)
Good morning, ladies and gentlemen, and thank you for coming out early today. These days, with emails and social media bombarding us all day long, I find that the morning hours are relatively conducive to clear thought. But I will let you be the judge of that.
I also want to say thank you to George Cautherley, Paul Zimmerman, and the Hong Kong Democratic Foundation for inspiring me to speak here today, and for helping to organize this gathering. The Foundation has been promoting thoughtful analysis of Hong Kong political issues for almost two decades. So I am honored to be with such a distinguished group this morning.
It will not surprise you to hear that, as Consul General, I get a lot of questions from Americans about what is going on with regard to the Hong Kong Special Administrative Region’s politics and governance. Is the Central Government now starting to use Hong Kong’s laws to constrain Hong Kong’s democracy? Do Hong Kong residents still truly enjoy the human rights that are enshrined in international covenants, and codified in Article 39 of the Basic Law?
Indeed, questions surrounding freedom and democracy in Hong Kong now appear to be approaching a pivotal moment, some twenty years after the establishment of the Special Administrative Region. The Central Government appears to be signaling that the democratic values enshrined in Hong Kong’s Basic Law should now be defined only in the context of the Mainland’s “comprehensive jurisdiction.” Depending on how things play out over the next few years, the people of Hong Kong risk losing some important rights and freedoms — rights and freedoms that are essential to the city’s way of life, as well as its future strength and prosperity.
Now, everyone knows the adage that “persons who live in glass houses shouldn’t throw stones.” And politics and governance in the United States are far from perfect.
Like all societies, we Americans struggle with difficult questions of collective rights versus individual rights. We are a complex society, which grew fast, and continues to accept more immigrants and more cultures than any other place on earth. But tensions linger. Even after a bloody civil war to end slavery, we still struggle with the stubborn demon of racism in America, which we allowed to take root in our land when our forefathers chose personal profit over human dignity. And in this century Americans are discovering that emerging technologies can be both a friend and an enemy to democracy, with the nature of public discourse often damaged by technology’s ability to distort the sharing of information and ideas.
Still, even recognizing all those challenges, democracy and good governance are something that Americans highly cherish, and we remain proud of the overall situation in the United States. This year we celebrated the 230th anniversary of the signing of our Constitution, the oldest such founding document currently in force on the planet. We know that our Constitution brought us stability and good governance, and powered our strength as a nation. For those reasons, it is in our nature as Americans to want to share our thoughts and discuss good governance principles with the peoples of other nations.
Last week, according to The Standard, Chief Executive Carrie Lam opened up publicly about her personal thinking behind her decision to seek her current job. According to the newspaper, Mrs. Lam touched on three reasons she was confident that her vision for Hong Kong could be achieved: 1) the advantages of the “one country, two systems” framework; 2) Hong Kong’s core values, including the rule of law, judicial independence, human rights and freedom; and 3) the degree of internationalization of the Special Administrative Region.
I agree with Mrs. Lam, that a society’s core values are critical to its success.
In the case of Hong Kong, the rule of law, judicial independence, human rights and freedom of expression are all key drivers of this city’s abiding power, as well as its future competitiveness. Democratic governance is also a key source of strength for Hong Kong, and I think it is clear that more democracy would make Hong Kong even stronger.
So it is in that spirit: as a friend of Hong Kong, and representing a nation — the United States — which very much wants Hong Kong to continue to be strong, successful, and prosperous, that I will offer some observations and ideas this morning for your consideration.
I will do this by exploring three key universal values: Freedom of Expression, Democracy, and Justice.
After that, before concluding, I will briefly touch on the implications of these concepts for Hong Kong’s governance and autonomy, going forward.
Freedom of Expression
So let me start, then, with freedom of expression. It almost goes without saying that this core value is fundamental to each individual’s human rights, and quality of life.
When one grows up, as I did, in a society that deeply respects freedom of speech, the concept becomes entrenched in one’s being — almost as a part of one’s DNA.
Here in Hong Kong, over the past year I have heard said out loud, more often than I had expected, the idea that “freedom of expression does not mean that you are free to say whatever you want.”
Well, actually, yes it does. That is precisely what freedom of expression means.
Let us examine some laws on the matter.
The First Amendment of the U.S. Constitution says, in rather ponderous 18th Century prose: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
I think that Article 27 of Hong Kong’s Basic Law says much the same thing a little more clearly, and certainly more concisely, using 20th Century English: “Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.”
Article 4 of the Basic Law also touches on this matter, and says, as you all know: “The Hong Kong Special Administrative Region shall safeguard the rights and freedoms of the residents of the Hong Kong Special Administrative Region and of other persons in the Region in accordance with law.”
So one key phrase there, obviously, is “in accordance with law.” This raises the question of what, if any, are the reasonable limits on free speech?
U.S. courts have found rare instances of types of speech which, depending on circumstances, are not protected by the First Amendment. They are: obscenity; fighting words; defamation (including libel and slander); child pornography; perjury; blackmail; incitement to imminent lawless action; true threats; solicitations to commit crimes; and plagiarism of copyrighted material.
It is important to note that each of these exceptions is related to one person’s speech specifically harming another person.
My understanding is that Hong Kong law, generally speaking, is quite similar, based on both common law and the very clear protections in the Basic Law that I just mentioned.
So why is freedom of expression important to Hong Kong, and to its current strength and future success?
If one defines “success” as individual well-being, including the reassurance of personal rights and security, then certainly the protection of freedom of expression is invaluable.
But even if one defines “success” in collective terms, for example in terms of economic growth and prosperity, I believe that the fierce protection of Hong Kong’s freedom of expression is and will continue to be instrumental to the city’s continued success. It is hard to imagine creative industries, or information-based services industries, or media enterprises, wanting to move to Hong Kong or stay in Hong Kong unless the city enjoys both freedom of speech and freedom of access to widely shared information — such as unfettered access to the Internet.
In fact, I think the economic importance of freedom of expression will become even more important in the near future, and beyond. International differences over whether, and how, to control flows of information are becoming more and more noticeable, as technology continues to evolve rapidly.
Some experts, in fact, are now proclaiming the arrival of “digital Leninism” on a wide scale, in many countries, including in China.
I think that this may actually become the most important new test for the integrity of the “one country, two systems” framework.
In such an era, it is all the more important for Hong Kong — for the health of its economy as well as its society and polity — to make sure that flows of information, and freedom of expression, remain unfettered.
Now, one recent hot topic in Hong Kong has been where and how it should be okay for people to advocate independence, especially given that Article 1 of the Basic Law states quite clearly that, “The Hong Kong Special Administrative Region is an inalienable part of the People’s Republic of China.”
The United States unambiguously recognizes that Hong Kong is and will remain part of China — and we are certainly not trying to change that fact. Our enthusiasm for greater democracy — in Hong Kong and around the world — is certainly not synonymous with a stance against China.
Still, we believe that public speech about the question of independence should not be considered illegal. This is because of our belief in the paramount importance of preserving freedom of expression.
Yet another hot topic in Hong Kong, as you know, is the question of showing respect to the national anthem. This became more pertinent last week when the National People’s Congress decided that its new law on the matter would be added to Annex III of the Basic Law, thus compelling Hong Kong to pass relevant laws appropriate to the situation in the Special Administrative Region.
Now, we Americans tend to enjoy displaying our flag, and we often sing our national anthem with gusto, including at sporting events. In most American public schools, students are also encouraged, although not forced, to stand during a daily recitation of the Pledge of Allegiance to our flag.
Even with all our patriotism, however, for an American, the idea of legally requiring people to demonstrate their patriotism, or criminalizing non-compliance, is unthinkable. If we did that, we would not be the “land of the free” that we sing about in the song.
Here in Hong Kong, I have sometimes heard a false equivalency drawn between the criticisms you hear about the decision by some of our professional football players to kneel during our national anthem, and the application of the new national anthem law in Hong Kong.
To be clear, no meaningful steps have been taken in the United States toward criminalizing what these football players are doing. Anyone suggesting such a thing would have no legal leg to stand on, so to speak. In fact, in the United States, even burning our national flag is constitutionally protected speech, as has been clearly stipulated by our Supreme Court.
Democracy
So let me now turn to the question of democracy. Democracy is a rather broad concept, so again it is important to be clear about definitions.
The Merriam-Webster dictionary defines a democracy as “a government in which power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.”
Or as our Declaration of Independence puts it, a democracy “derives its just power from the consent of the governed.”
Democratic governance is something that societies worldwide aspire to realize, and for good reason. A well-functioning democracy benefits citizens by instituting accountability. It also provides leaders with a source of legitimacy, while at the same time facilitating smooth transitions of power.
Hong Kong, under the Basic Law, has a certain amount of democracy in its form of government, and in the view of the United States, more democracy would be even better.
We have been clear, for example, that we support the goal of the Basic Law’s Article 68 — that “the ultimate aim is the election of all the members of the Legislative Council by universal suffrage.”
We also favor a more inclusive selection process for the Chief Executive, including universal suffrage, consistent with Article 45 and the desires of the Hong Kong people.
Greater democracy would seem to be particularly useful in Hong Kong, given the fact that under “one country, two systems” and the Basic Law, the Special Administrative Region government is accountable to both the Central Government and the people of Hong Kong. Striking such a balance can be made easier in an environment of transparent governance and democratic accountability.
Democratic accountability, in addition to its political advantages, can also provide broad material benefits to society. I think it is no coincidence that, historically speaking, Hong Kong’s government and police made huge strides in eliminating corruption during roughly the same timeframe as meaningful increases in government transparency and democratic accountability.
The popular media and many officials often herald Hong Kong’s top ranking as a “free economy,” for example in the Heritage Foundation’s calculation, as important to the city’s competitive edge.
But as a diplomat who has been working on international economic affairs for three decades, I can tell you that at least as important to Hong Kong’s success is its reputation for clean and transparent governance. Hong Kong scored at 15th place last year in Transparency International’s Corruptions Perceptions Index, two spots ahead of the United States. This strong record of clean government really matters to the Hong Kong economy, attracting both traders and investors, and I don’t think that such a strong record would be possible in the absence of democratic accountability.
Now, Chief Executive Lam has chosen a talented Executive Council to assist in policy-making, and that is certainly very useful. But I would suggest that Hong Kong’s Legislative Council still remains the city’s most important deliberative body, both because of the powers it has under the Basic Law, and because it is chosen — indirectly or directly — by the people of Hong Kong.
The Legislative Council has been a target of criticism in Hong Kong’s media and public discourse due to perceptions of procedural slowness, a problem that seems to result from the opposition’s reliance on procedure rather than vote counts to influence legislation.
What democratic societies worldwide appear to seek are legislatures characterized by substantive debate and decisive action, involving a constructive “loyal opposition.” Regular citizens seem to intuitively understand the idea put forward by Edward R. Murrow that, “We must not confuse dissent with disloyalty.” But they also want to see decisions made and business accomplished.
At the same time, most political scientists agree that stronger legislatures, both in terms of their rights and privileges, and in terms of how the legislators are chosen, tend to produce better outcomes.
Here in Hong Kong, I have also enjoyed the opportunity to learn about Hong Kong’s District Councils.
Hong Kong’s city-wide Legislative Council rightfully gets the most attention. But I find it striking that a strong democratic tradition also exists at the most local levels in Hong Kong.
As I understand it, almost all District Councilors are elected by universal suffrage, and they are generally considered to be responsive channels for communication, helping to improve the quality of governance and the quality of delivery of government services.
Justice
And so, finally, this brings us to the subject of Justice.
One of the most common phrases one hears in Hong Kong is “rule of law.” Indeed, the value of “rule of law” appears to be a clear point of consensus. Hong Kong’s government leadership, the legal community, politicians and the business community, as well as representatives of the Central Government, all refer proudly to Hong Kong’s independent judiciary and strong tradition of rule of law.
Some say that what the Central Government really means when it says “rule of law” is actually “rule by law.” But the Central Government has also consistently stressed that it supports the Basic Law, including provisions regarding the independent judiciary. Article 2 of the Basic Law states that, “The National People’s Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication.”
When strolling through the Central district in Hong Kong, I sometimes stop to admire the fine statue of Themis, the ancient Greek goddess of justice, which stands atop the Court of Final Appeal.
In keeping with tradition, Themis is encumbered by both a blindfold and a set of scales. The blindfold, of course, is intended to show that “justice is blind” — meaning that each person has an equal right to a fair hearing and trial, regardless of his or her status. But Themis also holds that very important set of scales, indicating that justice will also be balanced, appropriately matching crime and punishment.
The key is that Themis is expected to be able to use those scales, even with her blindfold on!
I think the important thing to remember is that Themis is not a robot. She can somehow see the scales, and make a balanced judgment, even while blind. She seeks balance and uses good judgment. This most excellent Greek lady possesses common sense, and can weigh motivation, and context, and use prosecutorial discretion.
In this regard, I was glad to read the recent statement by the Justice Secretary, in response to a question regarding whether a certain individual should be prosecuted for “incitement,” or for what in the United States we might call “hate speech,” the Justice Secretary said, “we need to consider the context.”
That makes sense, because context is certainly important.
It was that same sense, of the importance of considering the context of a situation, that prompted my government to express concern about the Hong Kong government’s decision to seek a re-sentencing of pro-democracy advocates.
From an American point of view, the concepts of justice, and “rule of law,” and democracy, and freedom of expression, are all inter-related, each supporting the other. And so it is important to consider the impact of each upon the others, when making judgments and decisions.
Implications
So, then, what are the implications of this discussion of Freedom of Expression, Democracy and Justice for the current and future situation in Hong Kong?
I believe that the protection and promotion of these concepts is essential to the future strength, success and prosperity of this city.
Hong Kong certainly has a lot going for it, particularly given its economic role as an important part of China. I have spoken often about the things that set Hong Kong apart, and make it special, and competitive, and a place that is highly valued by the international community, as well as by China and by its own people.
Typically, people observe how Hong Kong is the richest part of China, or has the most sophisticated financial markets in China. But they also note that it has the cleanest government in China, and the most reliable legal system and fairest courts in China. They also register that Hong Kong residents enjoy the most freedom of expression in China.
So this is where the whole question of Hong Kong’s autonomy comes into the equation.
For democracy to be successful in keeping Hong Kong strong, it needs autonomy to work.
Each of the core values that I discussed this morning — freedom of expression, democracy and justice — will perform better if Hong Kong continues to enjoy the high degree of autonomy that is prescribed in Article 2 of the Basic Law.
This is one of the reasons why I find some recent statements by senior officials in Beijing to be disconcerting.
The idea that Hong Kong should be governed “by the people of Hong Kong with patriots as the main players” seems fine, as long as those persons that represent Hong Kong’s “loyal opposition” are also recognized to be “patriots.”
But the newly introduced concepts of “comprehensive jurisdiction” and “residual power,” which actually do not appear in the Basic Law, appear more worrisome, and I expect that the international community will watch closely to see how these ideas might be applied going forward.
The most straightforward way to read the Basic Law is that the Special Administrative Region enjoys broad and far-reaching autonomy on most matters, unless otherwise specified (most notably defense and foreign affairs).
But the introduction of the concept of “comprehensive jurisdiction,” indicates that Beijing actually favors the opposite approach, in which powers of autonomy must be specifically designated in order to be in effect.
Clearly, the latter vision of autonomy, by disempowering Hong Kong’s institutions, would make it harder for the key democratic values I have discussed today to have their desired results in making Hong Kong strong, successful and prosperous.
Thank you for your attention, and I look forward to your questions and comments.
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