LETTER OF THE LAW
Column
by

Hong Kong, Istanbul and the influence of the Deep State

Just as Turkey experienced the effects of the Deep State exercising Deep Law in the case of the recent coup attempt, Hong Kong has a similar system emanating from Beijing

PUBLISHED : Monday, 15 August, 2016, 4:08pm
UPDATED : Monday, 15 August, 2016, 10:22pm

With that headline, you thought I would talk about the Turkish coup, the umbrella movement and the fishball revolution, didn’t you? I am a jurist, not a blogger. Instead, I want to talk about a branch of the law that few (even in my own institution) know about – Deep Law.

Deep Law refers to the law that allows the army – and its other partners in the Deep State – to over-throw the government.

Attempted coup merely the latest in a long line of Turkish military interventions

Turkish law and custom actually brought the concept of the Deep State (derin devlet) into popular use. The Deep State ensures that democracy does not degenerate into mob rule. When populism turns into riots, the army takes over. Yet, we can see the function of the Deep State all around us.

Everyone knows that the Chinese constitution does not give explicit powers to the Communist Party. Yet, the preamble makes clear who runs the government – as does the design of the Chinese government. The party controls the state through its command of the army. We get to see many members of China’s Deep State as representatives of the Communist Party. Others we do not see.

Turkey has a similar structure. The most recent constitution does not – contrary to popular belief – give the army the right to overthrow the government. At least, many of my academic colleagues and I couldn’t find that provision when we last looked.

The constitutionality of military overthrow relies on a theory and repeat practice, based on the 1961 armed services internal conduct code, that the army must protect the republic. Little more.

Yet, the constitution does ensure military appointments in the National Security Council and the Constitutional Court. These two bodies still wield considerable influence. As do the many other armed campaigns military and paramilitary bodies lead to kill undesirables. The public – until recently – often didn’t mind.

What makes Deep Law so hard to study is that it often appears in actions more than words. All unwritten understandings of the constitutional order rely on hearsay.

Hong Kong’s Deep State enthrals foreign observers. We do not have an armed cabal preserving the stability of the real Hong Kong – as portrayed in that God-awful movie Cold War II. Or do we?

We hear that mainland influence is spreading in Hong Kong. From the use of simplified Chinese characters on television to declarations that Legislative Council members must sign affirming Hong Kong’s embrace of the mainland. Our Deep State exists roughly 1,200 miles to the north.

Yet, Hong Kong operates under much the same constitutional order as Turkey – and unwritten order guaranteed by the military – to ensure China’s “national unity and territorial integrity.” At least that’s what we agreed to in the preamble of the Basic Law.

Hong Kong will continue – for better or worse – just as will Istanbul, under the watch of a Deep State with its own Deep Law.

Both establishment and radicals alike often ignore the lessons of Deep Law. Just because the constitution doesn’t mention something doesn’t mean it’s not the supreme law. Just ask the 265 who died in Turkey trying to enforce that unwritten order....

Dr Bryane Michael is a senior fellow with the University of Hong Kong’s Asian Institute for International Financial Law (AIIFL)