 I'm Mark Shlove, the host of Think Tech Hawaii's Law Across the Sea program. Today we're going to look across the sea at Hong Kong with my friend and guest, Carol Peterson. Carol is presently a professor at the University of Hawaii's William S. Richardson School of Law. However, from 1989 to 2006, Carol lived and taught law in Hong Kong and her depth of knowledge and experience with respect to Hong Kong is great. Carol has authored a law journal article about the causes of the changes presently happening in Hong Kong. And here's the title page and QR code for that article. And Carol recently visited Hong Kong and I've asked her to share her insights and observations concerning what's going on in Hong Kong. Carol, welcome. It's good to see you. And you're recently back from a trip to Hong Kong. How are you? Thank you very much. It's very nice of you to invite me. It was wonderful to go back to Hong Kong. I normally go back to Hong Kong two or three times a year because I have so many friends and colleagues there and I still do research on Hong Kong. But because of COVID, I had not been there in almost three years. And so I was dying to get back there. So much had changed since I had been there in November 2019. Let me ask you about that. I mean, you had a wonderful time, I think, in Hong Kong from, you know, 1989, 2006. You lived and worked as a professor and there was a certain atmosphere there at that time, I'm sure. And now you mentioned some changes. So how does what you experienced in that earlier period compare to the atmosphere today in Hong Kong? What is the differences or similarities or historical importance? What have you noticed based on your background and experience? Well, it's like night and day in a legal respect. In some respects, it's very similar. When my husband and I first moved to Hong Kong in 1989, it was still a British colony. But Hong Kong already knew that it was going to transition in 1997 to become a special administrative region of China. And that was because the Sino-British joint declaration had been ratified in 1985 and registered with the United Nations. So that was the period that we used to call the transition period from 1985 until 1997. And it was a very exciting period to be in Hong Kong. Some people were very nervous. Some people were so nervous that they decided to emigrate to Canada, Australia, New Zealand, the United Kingdom. But it was also a period of hope because the people who decided to stay were really committed to trying to protect civil liberties in Hong Kong, trying to build local democracy because that is what they thought they had been promised by both the British and the Chinese governments. And so it was just a very interesting place to be there. And when I arrived, I was, I thought I was going to teach just contract law my first semester, but they needed someone to teach Hong Kong legal system as well. And I remember thinking, I just got here. What do I know about Hong Kong legal system? But for the month of August, I buried myself in the library, reading history books and talking to people. And the truth is at that time, you could almost teach Hong Kong legal system out of the newspaper because the Hong Kong basic law was still being drafted. That would be the regional constitution for Hong Kong. And it did not get finalized until April, 1990. And it didn't go into force until 1997. So we were starting to teach this new constitution to the students. And all of us were beginners with that constitution. And Hong Kong was also drafting a bill of rights ordinance which is almost a verbatim copy of the international covenant on civil and political rights, the ICCPR. And that's a very important step. UN human rights treaty bodies always ask governments to incorporate the human rights treaty they ratify into their local legal system so that it can be directly enforced in the courts. And that's particularly important in a legal system that's based on British law because British legal systems tend to be what we call dualist, meaning that they look at international law as being in a different realm than domestic law. So if you want to really enforce international law in your domestic courts, you need to bring it into your local legal system. So in the fall of 89, when I was teaching Hong Kong legal system, we had drafts of the bill of rights ordinance for the students to discuss and they could go to the legislative council and listen to the bill's committee. It was just a fascinating time. And we actually told our parents we were going for three years, but as you mentioned, we stayed for 17. We just could not leave. It was too interesting. And probably it was a wonderful place to live. It really was. Yeah, Hong Kong. And I went to Hong Kong during that period of time and also and visited, I didn't stay for all those years, but I was there for a few days and I really enjoyed it being there. And you mentioned a number of things just now. You mentioned hope. You mentioned a lot of friends, people staying and leaving. And you mentioned that you were right there when the new law was being developed that would cover Hong Kong during the transition to China, becoming part of China. But you then you said night and day. So... Well, it wasn't night and day. Yes, not initially. We were there on June 30th, 1997 when the British ships sailed away and the British flag went down and the Chinese flag went up. And it was an historical moment, of course. And a little worrying, especially when you saw the People's Liberation Army march in, but they went right into their barracks and they stayed there. And so the day after July 1st, July 2nd, 1997, it really didn't seem that different. There were fascinating legal issues to work through and there were some disappointments right away because the last governor of Hong Kong, Chris Patton, had tried to push through some more democracy reforms at the end than China was willing to agree to. And so they did have a provisional legislative council for a while, while they changed the election law back to a more conservative model, not completely undemocratic, but not a fully elected legislature in the sense of geographic constituencies. And so there were these constitutional moments for sure. 1997, 1999, when they had a controversy over the right of abode, who would have the right to come from mainland China and live in Hong Kong because there is still an immigration border between the two territories. So there were many, many controversies, but nothing like what happened in 2019 and 2020, that was when we had the watershed. What has changed? And what is the, is it night or day now or is it some combination? And what are your friends feeling and what are you hearing from the people on the street in Hong Kong based on your last visit? Well, moving toward 2019, what we had was gradually intensifying conflicts over local democracy. And in a nutshell, the Hong Kong people really thought they were going to be able to eventually elect their government and fully elect their legislature. And China would not agree to that. And for this, I somewhat blame the British government as well, because I think the British government knew that from the start but didn't want the Hong Kong people to realize that. They wanted them to be hopeful. In any event, regardless of who is to blame, there was this constant tension where the people of Hong Kong wanted more democracy and Beijing was reluctant to give it to them. And you probably remember Occupy Central in the summer of 2014, that was all about wanting more democracy. That failed, that didn't change Beijing's mind. And after 2015, we started to see more and more encroachment on civil liberties. And the really horrible decision was made by Hong Kong's former chief executive, Kerry Lam. She introduced a bill that would have allowed for case-by-case extradition of a defendant from Hong Kong to mainland China in certain circumstances. And the reason it had to be case-by-case is the Hong Kong legislature had never approved an extradition treaty between Hong Kong and mainland China. And it may seem strange that you would need an agreement, but you did because they're separate legal systems. A common law legal system in Hong Kong, an immigration border, and then the Chinese socialist legal system. She came up with this idea that we could have a case-by-case extradition and the people were not going to have it. And initially in the summer of 2019, the protests were very peaceful, which was the tradition of Hong Kong. I used to take my son to pro-democracy protests in Hong Kong when he was a little boy and never worried that there would be any violence because everything was very peaceful. The police were very respectful. That changed in 2019. For many complicated reasons, many people blame the police. Many people blame the protesters because sometimes they did start not to engage in a lot of violence, but there would be sporadic vandalism, destruction of MTR stations, part of the subway system, that sort of thing. Personally, I blame Carrie Lam herself and the Chinese government because they were totally unwilling to negotiate. And had they withdrawn that extradition bill early in the summer, then I think things would have become peaceful again. But she did not withdraw it until things had really started to become quite, I don't want to say violent in the sense that it was violent all the way across, but there were incidents. And there were some incidents that really angered the police and some incidents that really angered the people and there were students who were getting hurt. And by the time I got there on my last visit before COVID, it was November, 2019, I was there to visit the University of Hong Kong. I was the external examiner for their LLM in human rights. And I was supposed to be visiting classes and giving some guest presentations. And literally the day after I got there, campus shut down. And we knew that was a possibility when I went there because there were protests all over the city at that time. But all the campuses shut down, the students took over the campus and I was staying on campus in a university guest house. I was perfectly safe. There was absolutely no danger to me, but we were worried that there might be clashes between the police, but I have to give credit to a number of deans at the University of Hong Kong where I used to work. They negotiated between the police and the students on campus, basically got the police to agree not to come on campus as long as the students didn't do anything violent, didn't throw anything at them at the gates and got the students to promise not to do anything violent. And so the University of Hong Kong really stayed very peaceful while I was there, but there were barricades. You couldn't get in and out of campus easily. You had to kind of climb over the barricades to go and see people. But there were other campuses that were really very violent and some very sad incidents happened. And when it finally came to an end, which was really initially due to COVID, not due to this national security law, because COVID happened first and it gave the government and a very convenient excuse to ban all gatherings. So by early 2020, Hong Kong was relatively quiet. You still had your civil liberties, but you had the COVID restrictions and everyone was kind of holding their breath to see what would happen. And I was quite sure that China would crack down and they did. And it came on June 30th, 2020 in the form of the national security law. And it is much harsher than I think anyone in Hong Kong expected. Even the pro-Beijing politicians, I do not think expected anything quite that harsh. And I have written articles about that. I wrote one article for the Hong Kong law journal in 2020 called The Disappearing Firewall. And it was all about how this law created many more links between mainland China's legal system and Hong Kong's legal system. So you now have security institutions from mainland China operating in Hong Kong. You didn't have that before. Hong Kong's policing was supposed to be done by Hong Kong police. Now we have special national security police. You have laws that prohibit all sorts of peaceful speech acts. And so people are very, very nervous. Who was behind all that? I mean, is this, I mean, who's idea was this? I mean, to do this. It was the central government's idea. No doubt about it. It was drafted by the National People's Congress Standing Committee. So I honestly don't think that Carrie Lam or anyone in the Hong Kong government wanted it, but by their actions, they helped to bring it about. And one could also argue that by their actions, the students who became less than peaceful at times, they also helped to bring it about. You have to think about it from the point of view of the Chinese government. They are a one-party state. They don't tolerate dissent in their own country. They do tolerate it, had tolerated it to some extent in this small part of the country, the Hong Kong special administrative region, because they had made these promises that were supposed to last until at least 2047. And because they wanted to continue Hong Kong's tradition of being a center of capitalism, place to raise money, corporate finance. I mean, it brought many valuable things to China, but there are limits to what Xi Jinping is willing to tolerate. And when the protest started to become violent, and also when the protesters started waving British and even American flags and starting to talk about independence, even though it was a tiny percentage of the people who were foolish enough to do that, I think at that point, they decided they were gonna crack down really harshly and put an end to it. So now you have, it's an offense now in Hong Kong to lobby for sanctions against Hong Kong or mainland China. And that offense is drafted to apply extraterritorially, which means that even if you were to go to Congress and lobby for sanctions against Hong Kong, and if you were successful and you got them to adopt sanctions against Hong Kong, the next time you went to Hong Kong, you could be arrested for it because you would have committed an offense. It is also an offense to advocate for independence or Hong Kong or to incite secession by waving a flag or a slogan that the court might interpret as inciting other people to advocate for independence. And so- So what I'm saying is that there is no real free speech there anymore. And also you're saying, I think that the one country, two systems is not a reality. I mean, am I right in those? Well, you may be going a little too far with that and I'll tell you why. I do still think people in Hong Kong have more liberty than people in mainland China. They have more religious freedom. For example, the Catholic Church still operates, the Roman Catholic Church still operates in Hong Kong. The people of Hong Kong still have more access to the internet, far more access. I have heard that certain sites are sometimes blocked but nothing like in mainland China. There is still more academic freedom in Hong Kong. We just published, my colleagues that I just published it's called the National Security Law of Hong Kong. And it's a collection of book chapters. And my co-author Kelly Loper and I who was still at Hong Kong, she and I wrote the chapter on academic freedom. And if you compare protection for academic freedom in Hong Kong with that in mainland China, it is still better in Hong Kong, but it's nothing like it was prior to 2020. So it's hard to say that there is no one country, two systems anymore. If I were going to be arrested, I'd still rather be arrested in Hong Kong than in Beijing. But I used to say that if I had to be arrested, I'd rather be arrested in Hong Kong than the United States because I think the police were probably less violent in Hong Kong than they might be at times in the United States. So I wouldn't say that anymore because now the scope of the law is much greater and I have far less confidence that the Hong Kong legal system can really adhere to the rule of law, particularly with respect to political offenses. If you were arrested for shoplifting in Hong Kong, it's pretty much the same, the same criminal law process as it was 10 or 20 years ago. But if you're arrested for a criminal offense, a political offense, particularly one that didn't exist up until a few years ago, you're in a much different situation than you would have been. So what is the feeling on the street? And are Hong Kong folks, are they looking to leave like they did earlier when they were considering the handover to China? Or what are the people in Hong Kong feeling? What do you hear? Can you sense it on the street or what are your thoughts? So it really depends on which group of people you're talking about. Hong Kong has more than 7 million people. So not everybody agrees on everything. You have to realize there are some people in Hong Kong who side with Beijing, particularly the people who have been appointed to the legislative council now. I mean, it's essentially appointed now. It is an election, but it's a very small circle election. And most of the pro-democracy candidates have been prevented from running either because they're being prosecuted or because they've been disqualified from running under Beijing's new election law. So for those people, and including one of my former colleagues who I used to teach constitutional with who is law with he's in jail. I mean, so for some people, life is really different. If you belong to a human rights organization, your life is very different. You have to be very careful. I know some people who are still advocating for certain areas of human rights, such as women's rights or LGBT rights, but they have to be very careful how they operate now. They can't receive any funding from overseas organizations anymore. That might make someone suspicious that they are colluding with foreign powers. They can't go out and organize protests anymore. So it's a very, very different Hong Kong for those people. And for some people, it's really sad and really depressing. And those people are struggling with whether to leave. Some people had to leave. I mean, there were some people who really felt that they were going to be arrested for sedition and they left rather quickly. But there are other people who are struggling with the decision. For example, they may have elderly parents in Hong Kong or they may simply love Hong Kong. They may have lived their all their lives and this is their home. And the thought of leaving and maybe not coming back is really difficult for them. So some of those people are trying to wait and see whether maybe things will calm down. Maybe there'll be some space where you can still do good work even within this much tighter national security restriction. I don't know how to describe it. It's like you're operating within a very tight circle and you have to be careful not to push the boundaries. And then there are a lot of people who aren't political at all and who really just care about the economy and they're waiting to see whether the economy can survive this. And that's not entirely clear. What about the expat community? Is there, where is that at? Once again, there are different types of expats, right? I was an expat, but I became a permanent resident of Hong Kong and became deeply involved in the Hong Kong legal system. I write about it. I still read the South China Morning Post and listen to RTHK, the public radio station, every day. So that's the kind of expat I was but there are a number of expats in Hong Kong who live a very good life and they go to the American club and they send their kids to the American school and they might not really care about politics. And I'm not saying that in a critical fashion because that's people's choice. And to some extent, that might be a better approach if you're a new expat to Hong Kong right now. You have to figure I'm here to do a certain job. You might be there to teach in the American school or you might be there to work for an American company or a multinational company. And you probably aren't going to get involved in politics in the way that some expats did in the past. I think now a newly arrived expat would have to be careful. Journalists are in operating under far tighter constraints. We always love to go to the Foreign Correspondence Club. We're still associate members of the Foreign Correspondence Club and it's a wonderful gathering place. And Hong Kong used to be the center of freedom of expression in Asia and many, many reporters were based there because it was such a place of freedom of expression and had a vibrant free press. That organization, I think they're still existing. There's some question as to whether they'll, their lease on their building will be renewed because they really angered China in 2018 in particular simply because they hosted a gathering where someone who is part of a very teeny, tiny pro-independence party gave a speech. And I'm not sure the Hong Kong government will ever forgive them for that. So we'll see. So this is what I'm trying to get across is your daily experience at Hong Kong and how you perceive these changes depends greatly on whether you were involved in politics or the legal system or whether you were not. Some people would tell you that the greater change has come about because of the COVID restrictions and up until very recently, and this is one reason I didn't go back until November if you traveled out of Hong Kong and came back, you had to be quarantined in a hotel for three weeks until they were absolutely sure you didn't have COVID. And then that gradually started to reduce to the point where it was one week and then by the time I got there in November, all I had to do was stay out of restaurants for a certain period of time and get my COVID test every single day. So within a week I could move about and go to campus and do things. But for a lot of people in Hong Kong, they couldn't leave to go see their families for a couple of years because they wouldn't be able to get back in easily, right? Let me ask you, you were talking, you talked about Carrie Lam, she's no longer the chief executive of Hong Kong, but there's a fellow named John Lee. What's that story? And what's his background? How does it look for him? Well, John Lee is the new type of chief executive for Hong Kong, he has a security background. He was secretary of security before that and he was in the police before that. And so that's a very different paradigm whereas Carrie Lam had been a civil servant, right? And had risen through the ranks of the civil service. And her story is kind of a sad one because in the beginning when she took over, we thought that she might be a better chief executive, certainly a better chief executive than the previous one who was very antagonistic, I think to the pro-democracy movement. She said she wanted to be more concerned about social welfare in Hong Kong and helped to address some of the housing shortages and some of the social problems that Hong Kong had. And we really felt maybe she would try to bring about a period of stability. And so then when she rather witlessly introduced this case-by-case extradition bill, nobody could understand what she was thinking and then she was so stubborn. She, even when it became apparent that there was no way the Hong Kong people were going to accept this without going to the streets, she just wouldn't withdraw the bill. There were two million people on the streets at one point in the summer of 2019. And I think her stubbornness is really what brought about the clashes with the police because she just kept telling the police to put down those protests. Well, how do you put down a protest of two million people? I mean, there were only so many police and the only way they could start doing it was by starting to become rougher and then clashes started. And so I think she was a disaster. Now, John Lee, because he has this security background, maybe he is the right person for now. I don't know in the sense that China would not allow anyone to be chief executive now unless they were absolutely confident that they can keep Hong Kong quiet, which is what it is right now politically. It's very quiet. You've talked a lot about sort of Hong Kong being in a transition, it seems to me. And that it's not clear where it's going. But what are your thoughts? What are your thoughts about the future of Hong Kong internally and in the world? We have about a couple of minutes left. The most pessimistic prediction, which many people believe will come about is that Hong Kong will just become like any other city in China. I hope that doesn't happen. I think the most optimistic prediction we can perhaps hope for is that it will become eventually something more like Singapore. Singapore also has some pretty strict security laws, but it does have a functioning democracy, although the same political party has been in power for many, many years now. And it does have a higher degree of civil liberties, far higher than mainland China, but not as high as Hong Kong once had. Its press is liberal and open as Hong Kong's ones was. But I suppose my hope for Hong Kong is that it can preserve rule of law and its separate identity and its separate legal system. But it may be too much to hope for now. I honestly do not know. And so we're still in the waiting period. We're still waiting to see what Hong Kong is. We're still holding our breath in that regard. Right. And I have another article coming out soon on the use of the ICCPR and the criminal trials where I've been arguing that the courts need to do more with the ICCPR because believe it or not, there's a provision in the National Security Law, article four that says the ICCPR will continue to apply in Hong Kong. And I'm arguing that the courts should be using that more in the trials as a guide to interpreting some of the vague language in the National Security Law. And there are trials that are pending right now, trials for subversion, trials for foreign collusion, for example, of Jimmy Lai. And I think that the lower courts have not been very good about using the ICCPR, but I'm hoping as the cases go up in appeal to the higher courts, where the justices really are very, very smart and very aware of international jurisprudence, my hope is that they'll be able to utilize that. But again, that depends on whether China is willing to allow it. It has a great deal of power now and it could override an interpretation by the Hong Kong Court of Final Appeal if it wanted to do so. Well, Carol, I wanna thank you very much for sharing all of your thoughts and insights into what's going on in Hong Kong and including the historical perspective. And I'd like to put up one more time the title page and the QR code is down there at the bottom right-hand side. Hopefully that can be used if people wanna see that article. I found the article very interesting and had a lot of different ideas that I'd never thought of, but of course, based on your experience and knowledge of Hong Kong, it made a lot of sense. So Carol, thank you very much. We'll keep looking to see where Hong Kong is. Thank you. And I very much appreciate your interest in Hong Kong. I think the people of Hong Kong also appreciate it. They like to know that the world is still watching. Aloha, Aloha Carol. Aloha. Thank you.