 Yeah, transitional justice. I'm Jay Fragdale. This is ThinkDeck and the handsome young man is Michael Davis. Michael Davis joins us to talk about China, rather Hong Kong and China. Michael is an American academic who serves as a global fellow at the Woodrow Wilson International Center for Scholars in Washington. He's professor of law and international affairs at Jindal Global University in India, senior research scholar at the Weatherhead East Asia Institute at Columbia University. He's a widely sought after scholar on human rights in Asia. He was a longtime professor in comparative public law at the University of Hong Kong. He knows Hong Kong very well and he testified in Congress very recently, one with three or four other people in front of a commission and the commission was called the US-China Economic and Security Review Commission and he was the lead speaker. A woman named Angela Dot was there from Freedom House, Marine Thorsen, a lawyer I guess on customs law considerations and I think oh and Samuel Chu was there too and a very interesting group. I think Michael was one of two lawyers in that group and he was the most authoritative on what's happening with the national security law in in Hong Kong and how it is a devastating democracy there. Welcome to the show Michael. Thank you Jay. I'm happy to be here on this transitional justice show as we've done some other ones in your global forum. Transitional injustice don't you think? Yeah that's what I suggested to them when they approached me that term because usually transitional justice is going from authoritarianism to an open society and this is going in the opposite direction. It's hard to make sense of it, isn't it? You want to connect the dots beyond the immediate issue, the immediate phenomenon but it's hard to do that here because it's sui generis, isn't it? It's just Hong Kong. Now you can say this happened in Tibet and PRC wants it to happen elsewhere and Xinjiang for example and Mongolia but somehow Hong Kong is different. Hong Kong is a democracy where every was a democracy where everyone was enjoying the democracy and freedom of speech and the rule of law and in a fairly short period of time say five years it has all declined and now is there any hope for Hong Kong? Well that's the thing. I mean it wasn't obviously a full democracy that's why protesters were protesting in 2019 there and we've talked about this in other programs that you've had but it was an open society and had all the guarantees of the rule of law and human rights that you expected an open society. It was a very open society one that was ranked among the most free societies in the world. Its rule of law was ranked near the top of the world as well so it had all the characteristics including the economy of a first world country and China took it back committing itself to maintaining these things at least for 50 years. I guess the idea was after 50 years maybe China and Hong Kong would both enjoy these status but China was dragging its feet over it. It put in provisions in the basic law that was enacted for Hong Kong so that China would have the ultimate say and the Chinese leaders are just not used to running an open society so they you know they just couldn't give in to the idea that people would speak freely in this society and do what they want and so it kind of used the government that it put in place which was supposed to be transitional until full democracy was established. It used that government to manipulate the situation and those officials were always beholden to Beijing so the end result is you get a very complicit government and out on the street are the people because the people have no avenue to have their voices heard except on the street in protest and what are they demanding? Well there are a lot of different things over the years but always democratic reform because they wanted a government that would represent them that would speak for them. I don't think they were asking for a government that would go to war with Beijing they just wanted a government that would find its voice and represent their concerns and help Beijing officials to do the right thing for this society and it's a big tragedy because there's been no society at least in our lifetime that was so fully developed that was basically turned over to a hard-line regime. I mean we all watched the tragedy the past week in Afghanistan the past couple of weeks in Afghanistan and that was tragic enough where at least some movement towards an open society had been taking place and then now there's a threat that it will all be taken away but those people had never enjoyed anything like Hong Kong and because of Hong Kong's unique status in this regard I think much of the world sees itself in Hong Kong it's like looking in the mirror and what would happen to your society under these conditions? Well you know I was thinking that as a lawyer you know maybe sometimes you have to look at the other side of it and see what you would do if you were on the other side of it you know either side of a civil case what have you a negotiation and the like and I tell you my reaction to what and you and I have talked about this before sort of on the path to 2047 let's get there sooner they say let's get there right now they say we've had enough umbrellas we're going to come down hobnail boots on the Hong Kongers okay and and if you were running it from Beijing could you have done a better job at suppressing and squashing all that freedom all all that rule of law all that openness and energy and vitality in Hong Kong could you have done a better job they did a brilliant job in destroying the open society in Hong Kong didn't they? Well they have and and of course if I were advising them as I have advised them in my many writings over the years often I write almost as if that's the audience and I want them to understand what's happening I would have said you you know Newton law Newton's law applies if you put pressure on people then they're going to push back and if you want the society to be peaceful and in a cooperative and get along then you probably have to be willing to not put all that pressure on them but what I think is happening and I think this is important to us all we all know there's this kind of global debate going on now a sense that there's a competition between liberal democracies on the one hand and authoritarian regimes on the other and one of the arguments that comes up very often is that this is being led on the authoritarian side by Beijing and Beijing wants to impose its model on on other societies as an alternative to western liberal democracy and if you listen to Xi Jinping's speeches you see that he really does envision this from time to time in his comments that China will offer a better model but I don't think the model they would offer would be that they would expect all countries to have a communist party takeover rather I think they they they envision a model in in that rhetoric they use that we won't interfere in the internal affairs of other countries they envision rather than simply that whatever Beijing could do in their country it is doing that these countries and their leaders would control that and make sure those people learn out there protesting against Beijing's behavior and so on and if you imagine that to be what they're after then Hong Kong looks a lot like their model that they're in a sense putting in place in Hong Kong and and and it takes more time than we have today but if you go through all the check through all the points in this national security law they've passed it looks it's very comprehensive it kind of checks all the boxes and and so it's not simply and well you guys can have a more authoritarian model and shut up the opposition it's much more elaborate than that it explains how that what that authoritarian model looks like and and so this transition away from an open society is being offered I think is a model that others can learn from sure and you know when you think of Belt Road and when you think of other countries over which China has economic influence and may have greater than economic influence that depending on you know how fragile how stable those countries are maybe they're going to try to sell this model elsewhere you know one of the most interesting things that I heard you say in congress was this somebody asked whether what was happening in Hong Kong was better worse or the same than is happening or would happen in mainland China and your answer was no Hong Kong is worse it's worse and I thought that was very interesting and the reason was you know according to the discussion there in congress was that this is the steps that the PRC is taking are calculated to avoid protests and so you need to take more draconian steps in order to avoid protests can you talk about that yeah because what you're in the mainland as I even used the example of Afghanistan you're not yet dealing in a society that has experienced uh free press and free speech and everything so putting the genie back in the bottle putting those freedoms away taking them away is a more aggressive act than simply not allowing them uh in the mainland I would assume and there's some support at least from opinion polls it's not based on the fact that the society has alternatives available in a free debate about it but at least people think their life is better than it was maybe 30 40 years ago on the mainland that things have improved so they're looking at what's going on and what the regime does through that lens where Hong Kong people are looking at it through a very different lens and I think that that's quite quite important and it's the kind of thing that I think societies that face this thing and you mentioned the Belt and Road well the Belt and Road in Sri Lanka means that they take over a port completely because the debt is not paid on it on the money that was spent to to do this construction and then people might protest against it well if they do maybe Beijing would be interested in having something like we see in Hong Kong where people are being arrested and stopping from from expressing their opposition another interesting comment you made it to congress was that when you have this kind of experience and you look at the quality economic side the business side you know because you have you have the common folk the young generations and then you have the business the business community in Hong Kong different different interests different approach different approach by the PRC but the one thing that I that I recall that struck me was that what they're doing what the PRC is doing is actually generating corruption in the business community and can you talk about that I think that's very interesting yeah that came up because one of the commissioners had read an article that was published by actually a journalist from Hong Kong about that being Hong Kong being two societies so the ordinary people and then the sort of business community and the business community in this vision that the opinion piece that was in the Washington Post I think the author was Rick Berg if I recall his name correctly the was that the business community is all happy with whatever Beijing is doing because they're going to make money and I suggested that maybe they shouldn't be so happy and that there's cause not to be happy I pointed out that some of them have expressed that because we know opinions poll was done in the American Chamber of Commerce and 40% of the members said they were going to move out of Hong Kong so that that's one thing we know that a thousand people a day are moving out of Hong Kong that's reported in data that's available so there's obviously some people on the high end that can afford to go who are not happy but I think one of the things that I wanted to stress in my response was that you in under this model that Beijing's introducing where you can't criticize the regime and where you're pressured to support its initiatives its actions then what if you don't if you if you don't satisfy them sufficiently and you may not because you're regulated by other foreign governments as well who's saying you shouldn't be supporting repressive policies and so on or if you do you'll face some kind of legal problem as a result so the result is that you're stuck between a rock in a hard place and so those who go along to get along are rewarded and those who don't are not well that's corruption yeah plain and simple yeah you know one thing we need to discuss I mean there's so many things to discuss you know just just looking at that video of the congressional hearing and reading the paper that you submitted there's so many issues here but one issue I find very interesting and I want to mention it to you it's actually come from one of our viewers in Singapore so this would not be somebody from Hong Kong to Singapore okay a different society and she says so was Hong Kong ever really a democracy to begin with you alluded to that earlier how did they fare all these years without being a complete democracy do you think that western this is the operative part of the question do you think western hands have a part to play in the protest and do you think western hands should have a part to play in what goes on now in terms of trying to deal with the draconian steps that the PRC is taking against Hong Kong where's the west on all of this yeah well what we discussed in the hearing in this issue of colonialism came up clearly the British form of colonialism in its early years 1840s all the way up to world war two was pretty much textbook colonialism with white guys running everything and Asians they're probably because there are some economic opportunities but not invited much into the government so it's only after world war two and the UN and the universal declaration of human rights anti-colonial provisions in the UN charter that this starts reforming and it becomes a much more of an open society and more and more local people are invited to participate in the government to the point by the time the handover at first some of the legislators are elected but the colonial governor is still appointed so there's no question about it that that's colonialism and china comes in more or less on a similar model controlling who's the chief executive but promising something much more the thing about it though is under the British colonial rule the British system of the rule of law was introduced and the basic freedoms and so on under the rule of law eventually this takes the form of a bill of rights which was literally a photocopy of the iccpr there was there were calls in the 80s already i was there for democratic reform and some of it occurred at first a limited number of legislators and then direct elections and so on so all of this is going on the last colonial governor starts speeding that up a bit but china was telling them in fact china was telling britain long ago not to follow the UN charter provisions that called for self-determination because hong kong was to remain part of china and not to have that choice so you have basically a very open society without democracy but in effect the openness being guaranteed by an outside power british and then eventually under the sign of british treaty and the basic law by the chinese themselves a very peculiar thing guaranteeing the basic freedoms in hong kong without democracy but what happens is the people quickly discover that you need some kind of democracy if you're going to guard the autonomy that was given to hong kong and that's why you have them on the street protesting and that the chinese government because i mean why they had one country two systems is because they don't have basic freedoms they don't have the rule of law so it's kind of a risky proposition if you don't have some local government that could represent the people so democracy becomes an urgent matter under this arrangement that it hadn't been so much under the british colonial rule and one of the things you take away from all of this to make a long story short is hong kong people more or less kind of liked the british colonial structure more than what they got now that's why you see them carrying british flags and so on and i think a class i had years ago kind of said it so succinctly i asked them what would this was 1985 one year after the sign of british joint declaration i said do you like that joint declaration is that what you want what would you want if you were asked and first the class i was teaching refused the question said that nobody asked us and then the second they found i said i said come on you were me what would you go for and interestingly they said they would return hong kong to china and then hire the british to run it which is very indicative that they had at that point they're not hostile to china china had to build up that hostility by its behavior subsequently but they did not trust the chinese government and in surprisingly they actually trusted the british government to get it right to preserve their freedom to leave and come and go to speak as they choose and so on so this is kind of why they might be carrying around british flags in protest in 2019 and 2014 and so on the british were not perfect by a long shot but in in the context of hong kong colonialism probably did not have as bad a name and i i suppose because people contrasted hong kong with the rest of china and so colonialism came off not so bad i'm sure they i'm sure they're nostalgic for the good old days right now because it's you know they it's crushing when you hear all the news including all the points you discussed in congress but i want to ask you one thing you and i have talked about you know the timeline here and how china is advancing the timeline for reasons which we should discuss as as are being revealed but i wanted to ask you this we have seen in afghanistan you mentioned afghanistan that over 20 year period you have a whole new generation come up and a substantial percentage of the population was born within that 20 years in that in that 20 year generation so here we are and it's 2021 and if you back this up a few years say we started the new generation say in in 2019 and so ed you know that so that's we're getting 20 20 years from that okay will these people these vital young freedom loving people who are now so unhappy will they remember or will this all be gone by the passage of time under the heel under the boot of beijing well this is a very worrying question as you know i have a daughter who was of that generation that was born after the handover she had just written the book about it and you you had a show on this and so that's the kids that we've been seeing in the street that's the generation we've been seeing in the street and almost all of the prominent ones that were taking a leading role in the protest in 2019 are now in jail and those who aren't in jail are often fleeing to get out of hong kong because they suspect they will soon be caught and beijing has put in its new electoral model this is something done beyond the national security law provisions to block any opposition figures from being able to even run for office there's all this vetting of candidates sort of like the the guardian council in iran does to approve who runs for office so the conditions on the ground are very hostile to sustaining the kind of passions the young people of hong kong have and at the same time they're very aggressively trying to change the education system taking away courses where critical thinking are encouraged and substituting courses where students are you taught national security even teaching national security apparently in the kindergarten the students be aware of it and so this you know this is what happened after 1989 in china i was in beijing in those days from time to time and they they started reeducating the youthful generation and giving the same similar kind of educational guidance for for teaching them and that sort of erased a lot of the passion that drove the 1989 protest in china so the chances that that might happen in hong kong are significant that that the clearly the design of all this intrusion into academic freedom is to make sure that the what is viewed as a wrongful path of hong kong youth is corrected so a lot of 1984 and orwell so one of the things that sam samuel chou said or was it not was alex wan who was one of the congress congress people there on the commission which which is really chilling he said quote freedom is never more than one generation away from extinction right and i think that could happen anywhere it could happen here in the united states we yeah that's i mean someone uh one of those pro beijing figures in hong kong actually often like to point out that hitler was elected now she was doing that to dismiss the idea of democracy at all you know that even democracies elect uh the wrong people and freedoms are lost uh but you know this just tells you that if we're not up to the task of guarding it and if uh or if we're not allowed to guard it as in a case of hong kong then uh those kinds of values can be lost the chief executive of hong kong at one point confronted with the dissatisfaction of the youth and the fact that hong kong a lot of families were sending even their young kids abroad to study in boarding schools so that they're not brainwashed she said well if hong people move out of hong kong china has over a billion people we can always find new people to replace them so this is this that's that's real politic so uh yeah so um you know the problem is uh you know what can oh the problem when last time you and i spoke was before some of these things that she has been doing have been revealed yeah so more more recently he's he's come down on tutoring on the mainland they're very interesting and he's pronounced himself more mal than mal was mal um and he is making all these noises about taking over taiwan and the taiwan semiconductor manufacturing corporation which is you know critical in chips um he's been tougher and tougher and shin jiang so i mean things have happened since you and i last talked michael and i and i wonder you know whether this we can see through a combination connecting the dots for all these things that she has been doing um a larger pattern a larger strategy and how that strategy includes and affects hong kong oh yeah it has a huge effect hong kong now has largely become very much in the middle of the sino-us struggle or conflict as we would call it and even the other day the chinese leader in the their foreign ministry was telling the us representative which was uh john carrey uh that well we're not going to talk about they you know things like climate change and stuff on which we could work together as long as your having policies that intrude in our internal affairs in hong kong and shin jiang and so on so they've tied these things together so it's going to make it difficult and this was very much in the news that it's going to make very difficult for the two countries to cooperate over vital concerns and so that's where we are right now and hong kong is very much in the middle of it so what can we do is it was troubling to hear from your panel in congress that i think samuel chou did mention this and some some fellow wanted to escape hong kong gotten a boat and headed toward taiwan and he was arrested for wrongful passage or some kind of you know ridiculous crime like that and he's in jail now um so it's hard to leave hong kong how how hard or easy is it to leave hong kong and what role can the united states play in bringing people out of hong kong and will that really help yeah i think it is important because the leverage on china has to be improved i think the sort of unilateral pressure trump was putting on china really doesn't work china just works with other countries and gets around that and it does a lot of what aboutism about the us and its own history of human rights abuse and so on it gets us nowhere so i think multilateralism is one part of the answer to to work together on international standards of behavior and and the second is because the people of hong kong can't wait just like the people of afghanistan can't wait is to have some kind of policy in our immigration uh uh loss that would allow them to come to the united states uh canada has a policy for example that says people who have canadian degrees can immigrate uh from from hong kong so us might have policies like this and and it can only benefit us because uh we have an aging population and we're talking about people with talent that could come to our country and i think so it's a win-win case for us and so these kinds of issues i think have come up in those discussions in congress about how to address the problems uh some people even biden the president biden has uh said that those uh in in hong kongers in the us can stay on longer and get jobs and work so if they're studying in the us they can choose that route so these are things that have to be explored yeah and he increased the immigrant visa or rather the non-immigrant visa to 18 months for hong kongers yeah that's right and now the question is whether congress will act to give a some kind of special immigration category for hong kongers and let them stay longer let to become um not you know uh immigrants uh that would be that would be very good and i agree with you there's all kinds of benefits to that and i'm hoping that congress can get its act together on that and many other things but beside the us you know last time we spoke we spoke about the uk program uh where the uk was allowing a certain a certain number of hong congress in on a special visa how is that doing and what other countries are being sympathetic to the problem so as to either a allow immigrants or b make a global statement maybe the united nations somebody who will speak up about this well there's some a lot of speaking up but then putting action behind the words is is the challenge i know the eu uh has made some statements and the agreements they reached with china have been put on hold i think because of shin john as much as hong kong the british model is is a very favorable one uh i'm not sure of the data on taking it up but it basically says that any hong konger uh who can qualify for a b and o passport there's a british national overseas passport which would be any hong konger born before july 1st 1997 that they can immigrate to britain under a five-year visa and establish permanent residents and citizenship so that that reaches i think about three million people so that that's a major program and i one that's appropriate given british colonial history and that britain is part of the agreement i know there are people exploring ways that britain can bring uh that that might be able to bring china before tribunals or whatever but that's road is very much closed there's not much you can do the ice international court of justice is only available if the country agrees to it and china would not so we see we're seeing a citizens tribunal for the Uyghurs being conducted in britain uh so i don't know if something like this will come up in future uh efforts to promote hong kong well i think you know the the the basic um basic strategy has to be to keep the issue alive yes and not like let it settle down into some sort of status quo sort of thing where nobody cares anymore that that's the greatest risk of all and i know that you're doing a yeoman job and getting the word out your daughter wrote the book your family is involved that's fabulous um and i think you know we all have to have these programs we all have to write those books and articles and so forth um but one thing that came up in the congressional hearing that that interested me was to establish an under secretary for relations with hong kong uh in the department of state and everybody felt the same way about it but your thought was that that would be a good idea uh can you can you talk about that and and the value of a program of the creation of a uh a high level under secretary for that purpose yeah well that's what i i it was actually an idea put forth by one of the commissioners who who has been a senator uh and uh it was new to me this idea that it would be done so i was reacting on the spot uh but my thought was that if you have an advocate for hong kong in the state department uh then i would think that that could help do what you just said sustain attention to the issue uh and work with congress and and and those in congress that constantly are paying attention and want to promote the issue i would think such a person in such a role could be very helpful to that now i raised the question whether they could actually do that as including hong kong and and the weaver situation uh and and and well they would have to decide the limits to bet or taiwan uh sort of china's periphery uh whether that would be better and i guess it would be a matter of determining just how much uh time would be taken in each of these areas uh or whether it would be better to keep them separate and i haven't had not thought that through yet you know here's a question it's my last question michael um we're running out of time but um then i always ask you i always ask you this question and and and each time i ask you the the answer is perhaps um a little more scary i'm sorry where are we going on this what are your predictions for the next five ten years what are your expectations from the prc and the resilience of the you know the the democracy democracy community in hong kong uh and for that matter the world around hong kong who can speak to this issue i think it it is a grim prospect at the moment they're so comprehensive in their repressive strategies to arrest people who do anything to prohibit anyone who has an opposition voice from even running for office they have a committee to vet anybody and everyone who chooses to run can subject themselves to will subject themselves to an investigation by the police uh and again put themselves at risk of being uh risked for some kind of national security violation and and that's very serious so i think they they are are closing down hong kong as we know it uh and a lot of the the voices that speak out are in jail and or overseas and when they're overseas they endeavor to speak out for for their friends i mean many friends of mine are now in jail in hong kong and these are really good people that have worked so hard for the society so uh that that's very discouraging i think the the prospects for the next five years the only hope is i suppose is on some macro level there's some uh change of direction in beijing and in some ways beijing now has put the onus on it for sustaining hong kong where before hong kong was sustaining itself so i just don't we can't predict that we know shijun ping has appointed himself a president for life and i guess he has more life in him looks of it so this is going to be a long long uh ordeal i think it's it's transitional justice the wrong way that's what it is yeah thank you michael michael davis is uh an american academic who serves as a global fellow at the woodrow wilson institute center for scholars in washington and who has years and decades of experience and teaching in hong kong constitutional law the rule of law he is he is a treasure to the to hong kong into the history of hong kong and very likely to the future of hong kong thank you so much michael you're welcome thank you for your attention to hong kong it's much appreciated aloha