拜登上任在即，FT這篇專欄分析值得細味，節錄三段。

On January 20 1961, John F Kennedy, America’s youngest ever elected president, gave his inaugural address from the steps of the Capitol. Exactly 60 years later Joe Biden, America’s oldest ever president, will be sworn in at the same place — just days after it was stormed by a riotous mob.

Kennedy used the magisterial backdrop of Congress to proclaim that the “torch has passed to a new generation”. Mr Biden is the representative of an older generation — one that now fears the torch of liberty is in danger of being extinguished, even in the US itself.

America’s disarray is China’s opportunity. As part of a planned pushback against China, Mr Biden had planned to call a summit of the world’s democracies. But, after an attempted coup d’état by a sitting president, America may lack the credibility to act as convener of the free world. Mr Biden’s democracy summit is likely to be quietly shelved in favour of a D10 meeting of 10 democracies, brought together by the UK.

【震驚英國外交部的丁屋問題】

丁權司法覆核上訴聆訊，丁屋政策是否屬基本法第40條的「合法傳統權益」之一，成了聆訊焦點。政府及鄉議局認為，既然丁屋政策屬「合法傳統權益」，那麼就算丁屋政策歧視非原居民及女性，都不會不合法。但若基本法第40條真的包括丁屋政策，會否令其與「反歧視」條文基本法第39條(公民權利和政治權利國際公約，即ICCPR)矛盾？這點須由法庭決定。

為何丁屋政策實行近半世紀，竟沒人處理如此明顯的憲法矛盾？最新解密檔案揭示，30年前港府與英政府曾就相同矛盾激辯過，英政府曾一度咬著新界土地特權不放，要求港府交代丁屋政策如何合乎人權，但衛奕信對此左閃右避，指事情應由將來的法庭定奪【註】。要是當年了斷了丁屋政策，今天的丁權司法覆核案就不用發生。

－衛奕信為保丁屋 不惜與外相罵戰及假傳聖旨－

六四事件後，港英政府希望盡快通過《香港人權法案條例草案》（《條例草案》），將ICCPR法律成文化(codify)，為97後港人人權提供防護網。由於《條例草案》有凌駕性，港府的法例和政策不能與其有衝突，丁屋政策歧視女性及非原居民，極有可能違法。衛奕信坦承，新界土地特權的差別待遇(differentiation in treatment)屬歧視，但這些歧視「保存新界鄉村文化」，所以仍然「合理和客觀」(reasonable and objective)。衞奕信或許心知丁屋政策或未能在法理上站得住腳，亦「戴頭盔」指這個潛在的憲法矛盾未有權威的法律解釋(no authoritative interpretation yet)。即便如此，衛奕信建議一動不如一靜，不取消丁屋政策。

時任英外交部法律顧問Paul Fifoot 十分驚訝，指港府作為丁屋政策始作俑者，竟沒有思考國際人權公約責任，是不負責任(It is irresponsible for an Administration to legislate in such a manner that they are unprepared to say what they believe the consequences are)；外相韓達德(Douglas Hurd)甚至直指不能信服(not convinced)。想不到的是，衛奕信竟為此與外交部展開「罵戰」。外交部繼續要求衛奕信正視問題，認為終有一天港府要被迫澄清歧視性的新界土地政策如何不違反人權(....you came under pressure to clarify the relationship between NT policies and the ICCPR)。衛奕信對此甚為不悅，將外交部的告誡形容為「如同法官般的語調」（surprised by the admonitory and magisterial tone），韓達德也不客氣，直指就衛奕信對外交部認真而詳細的建議如此輕蔑(dismissive response)，感到氣餒。

最後衛奕信搬出「聖旨」，指早於1976年英國通過ICCPR並在適用於香港時，英政府已考慮新界土地政策與ICCPR的兼容性(at the time, HMG gave a view on the compatibility of existing New Territories land policies)。外交部對此甚為愕然，因當年主理相關事宜的外交官也對此無印象。結果英政府花了五個月時間翻查檔案，才證實衛奕信「假傳聖旨」(there is no record of HMG having given a view...no indication that any department in London had raised the question, nor that Hong Kong had explicitly done so)。檔案顯示，衛奕信於1990年7月12日開始與外相展開罵戰，4天後「假傳聖旨」，而外交部在同年11月才搞清楚衛奕信「講大話」。翻查立法時序，《條例草案》在7月20日刊憲，同月26日已送往立法局首讀，顯示衛奕信一邊混淆外交部以爭取時間，一邊匆匆將《條例草案》送往立法程序。

衛奕信有意無意透過假傳聖旨「過骨」放生丁屋政策，令時任外交部法律顧問Jill Barrett甚為懊惱，除了於檔案內指出衛奕信對丁屋政策的看法沒法律基礎，更直指他事實上誤導了行政局及英政府(factually misleading)。檔案顯示，英政府無再就此事追究衛奕信，將爛攤子留給今天的法庭處理。

－違反人權 將是丁屋政策死穴－

從檔案可見，衛奕信曾嘗試辯護丁屋歧視的正當性，但在是次丁權司法覆核案聆訊中，政府已全面「轉軚」，不再為此辯護，只謂基本法第40條有其權威，法庭不必去研究丁屋政策的歧視是否正當(justified)或合乎比例(proportional)。顯示詳細研究後，政府或許都「心知肚明」丁屋是不能在ICCPR的國際人權準則下證明正當合理的。這點或許可從原審法官周家明的判詞中看到－若參考根據以往與人權相關案例，丁屋政策的差別待遇顯然不能被證明正當（In my view, it is clear that the preferential treatment….cannot be justified under the justification tests...，判詞第24段），丁屋政策的歧視性在法律層面上似乎已有定論，這份密檔或會成為終結丁屋政策的「利器」。

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【註】明報2020年1月1日 丁屋政策爭議「留法院定奪」 英外交部批衛督不負責任
http://bit.ly/39x2ONV

【原審判詞】 HCAL260/2015 ; [2019] HKCFI 867 Date: 08/04/2019
KWOK CHEUK KIN AND ANOTHER v. DIRECTOR OF LANDS AND OTHERS; Reported in: [2020] 1 HKLRD 988 https://bit.ly/3gY4sM2

【參考資料】
FCO40/3112 Hong Kong Bill of Rights (Part D)
FCO40/3113 Hong Kong Bill of Rights (Part E)
FCO40/3114 Hong Kong Bill of Rights (Part F)
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延伸閱讀

【申請權 vs 建屋權】法官：政府能全權決定是否批准丁屋申請
https://bit.ly/2Dtd8eZ

香港丁權案關鍵：「傳統權益」論述從何而來？
https://bit.ly/2Q5EhaB

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Farewell. Ida – Ida Haendel 192?-2020

So Ida has left us – a legend has departed. What a violinist! What a woman! Magnificent, unique, incorrigible – she was a law unto herself.

First, the playing: a film about her was aptly entitled: ‘I AM the Violin.’ And she was! The violin was her life; she mastered it, devoted so much of her existence to it, cared so much about it. Every performance was an event, which she took absolutely seriously, giving each concert her all. She spoke through her violin, proved herself through it, lived within the music she made. She was a marvel, an icon; each note she played was the result of total conviction – and as a consequence was totally convincing. She had been groomed from the beginning to be a star – and a star she was.

But she was also an adorable person. I had heard of her, of course, from my childhood onwards – hadn’t everybody? But I didn’t meet her until - I think - 2000, when I attended a memorable recital she gave at the Wigmore Hall (apparently her debut there!), concluding with a magisterial performance of Enescu’s 3rd sonata. I’d heard, to my delight, that she’d heard me somewhere, and had liked it, so I dared to go backstage afterwards. Having enthused about her playing, I rather uncertainly told her that I was Steven. She looked at me disbelievingly. ‘You’re NOT’ she announced, in her wonderful deep voice. I assured her that I certainly had been last time I looked in the mirror. She accepted this, and proposed that we play the Brahms Double together. It was such an honour; but alas, I just couldn’t do the dates she suggested.

I came across her shortly thereafter, however, at the Verbier Festival. I’d seen that she was giving masterclasses there, so when I saw her, I asked how they were going. She looked at me severely. ‘Steven,’ she boomed, wagging her finger. ‘I don’t teach.’ I was puzzled; she was, after all, advertised as the teacher of the violin class. ‘So you like teaching?’ I said, provoking her. The finger wagged again. ‘Steven,’ she repeated with equal seriousness, ‘I don’t teach.’ ‘So how’s the teaching going?’ I asked. Her finger was on its way in my direction, and she’d started to say my name in the same tone of voice – when suddenly her face broke into a big smile. ‘Oh – so you’re a tease,’ she said. After that, we got on famously. My other main memory of that Verbier encounter was of her examining something – I couldn’t see what - in the hotel lobby, and then calling me over. It turned out that the object in her hands was an album of recent photos of her. ‘Look, Steven,’ she commanded urgently. ‘Don’t I look gorgeous?’

Later, we took her to dinner near her flat in London. Tottering through the streets in her high heels, she suddenly came to a stop in front of a (closed) clothes shop, where either a pair of gold shoes or a gold dress (I can’t remember which) had caught her eye. It was impossible to budge her, late though we were for the restaurant. ‘Wouldn’t I look wonderful in that?’ she asked us challengingly. We agreed that she would. ‘I’m coming back here tomorrow morning,’ she assured us. She spoke that night about her appearance. ‘You think I dress like this just to go out?’ she asked. ‘No! Catch me at breakfast – I’ll look just the same.’ Her pride in her appearance was never-changing. Perhaps in someone else it could have been too much – but with Ida, it was wonderful, admirable; life-affirming, in fact, like her pride in her playing.

It is funny that already I’ve seen two obituaries giving her age five years apart. She’d certainly have preferred the younger estimate… It was impossible to get the truth out of her. I remember asking another glorious violinist-character, Lorand Fenyves, whether he knew Ida. ‘Oh yes, of course!’ he replied. ‘I knew her when I was 16 and she was 15.’ He paused. ‘And now I’m 80 and’ his eyes twinkled, ‘she’s 55!’

Although we never got to play the Brahms Double together, we did perform the Beethoven Triple concerto with Martha Argerich and the Rotterdam Philharmonic under the then little-known Yannick Nezet-Seguin in (I think) 2006. Now THAT was an experience – to put it rather mildly… Playing with those two way-larger-than-life ladies was something not to be forgotten; the two adored each other, and it was great fun to witness their interaction. Ida had only played the piece once before, as I remember; but she played it with utter conviction. And Martha was – well, Martha. And Yannick kept the whole thing together, somehow. So – it was special…

It was supposed to happen again, in Miami (where Ida lived); but alas, it didn’t. Still, I kept in touch with Ida and on one memorable occasion got to interview her at the Wigmore Hall (there’s a recording of that occasion on Youtube). She also came down to Prussia Cove once for three days, her visit culminating in a breathtaking account of the Bach Chaconne (she sported an almost equally breathtaking dress to match!) at the Hall for Cornwall. We also played and taught/didn’t teach together in 2010 at the Summit Music Festival, just outside New York. That was another unforgettable experience. At the concert that concluded the festival, Ida played virtuoso pieces with the orchestra that would have been impressive in someone thirty years younger – even younger – than she was. But equally Ida-ish was the post-concert experience. For some reason, it got very late, and it was well after midnight when we were taken in search of food. Not surprisingly, there were few options in the countryside at that time of night; but eventually we found a 24-hour diner. We went in and occupied a table. Looking around at the bikers and other rather unpredictable-looking types, I was a tad nervous; not Ida. I fortified myself with a margarita; she had tea. At one point, the conversation turned to Schumann, and his 2nd violin sonata (which at that time I didn’t know very well). I asked a question about it. ‘You want to hear how it goes?’ Ida demanded to know. She strode over to her violin-case, pulled out the violin, and to the astonishment (and then, luckily the delight) of the assembled company, began to play it. A photo taken at the time (below) shows me a little less than comfortable – and her absolutely in her element.

Oh, Ida. By the last time I spoke to her – too long ago, but not that long ago – I’d heard that she’d become very forgetful, so wasn’t quite sure whether to call her or not. But I dialled anyway, and the phone was answered. ‘Hello, Ida?” ‘Who is it?’ ‘It’s Steven – Steven Isserlis.” Silence – then the phone went dead. Oh dear. I tried again. This time I was able to hold her attention long enough to remind her who I was. We started to talk, and as the conversation progressed, she evidently remembered more and more about our friendship. It was true that she repeated herself a lot; but still – she was very much Ida, the same wonderful voice, the same love of life.

And now she’s gone. Farewell, Ida the legend; we humanoids will miss you – but thank you, thank you for giving us so much. Everything, in fact.