RTHK "Letter to Hong Kong"
by Martin Lee
Broadcasted on RTHK Radio 3 on 12 December 1999
On the 29th of January this year, the Court of Final Appeal delivered a judgment on the right of abode case which was hailed as a landmark decision for Hong Kong. In it, the Court of Final Appeal held that a generous interpretation must be adopted otherwise human rights cannot be protected.
About ten months later, on the third of December this year, the same Court of Final Appeal handed down another judgment, also on the right of abode, in which the court effectively abandoned everything it said in its judgment in January. Both judgments were unanimous and they were by the same five judges.
Who is to blame? I think the Hong Kong government.
The government lost the first case before the Court of Final Appeal but decided not to implement the decision of the Court of Final Appeal because, according to the government, it would mean that about 1.67 million immigrants would then descend onto Hong Kong in a few years' time.
That figure, 1.67 million, has been proved to be a lie. But enough damage has been done because that absolutely frightened the people of Hong Kong, so much so that they said to the government effectively, according to the polls conducted at the time: "Keep these people away from us. Do anything you like, including doing something which will harm our rule of law."
The government, of course, could have gone to Beijing and asked for an amendment of the Basic Law which would have been supported by the Democratic Party and the Bar. But the government didn't want that. The government instead did a very wrong thing. The Chief Executive requested the Standing Committee of the National People's Congress to reinterpret the same two articles of the Basic Law which the Court of Final Appeal already interpreted. This was duly done in Beijing.
In the second case before the Court of Final Appeal, the government was able to rely on that interpretation by the Standing Committee. And in order to avoid defeat, the children of the Hong Kong residents who claimed to have the right of abode in Hong Kong would have to argue, as they did through leading counsel, that the interpretation of the Standing Committee was itself contrary to the Basic Law. That was a Herculean task.
And if the Court of Final Appeal would uphold that submission, it would really start the greatest constitutional crisis we could ever imagine, namely the courts in Hong Kong declaring the Standing Committee of the National People's Congress, which is the highest body in the land, to have acted unconstitutionally.
The Court did not accept that submission from counsel but instead ruled that the Standing Committee has an absolutely unfettered power to interpret every article of the Basic Law without any restriction whatsoever. In other words, the Court of Final Appeal accepted the arguments from the government.
Firstly, the Standing Committee could interpret every article of the Basic Law without distinction, including those articles which have nothing to do with Beijing, for example, articles which protect human rights in Hong Kong.
Secondly, any person in Hong Kong can apply for such an interpretation, but whether the Standing Committee would actually do so is entirely a matter for the Standing Committee.
Thirdly, and most importantly, the Standing Committee may interpret any article of the Basic Law at any time, that is, before, during or after judgment.
Just think of the consequence of that. If you should be unfortunate enough to be litigating with the government on the other side, if you lose before the Court of Final Appeal, then that must be final for you, because surely the Standing Committee would not listen to you when you apply to it to reinterpret the Basic Law. But if you should have the good fortune of winning before the Court of Final Appeal, don't be overjoyed because quite likely the government would go to Beijing and it would then have the judgment reversed.
But why did Mr. Tung invite Beijing to intervene in this way? I suggest he did it for one reason and that is: To give a subtle but very strong message to the five judges sitting on the Court of Final Appeal. He was really saying to them: "Look, gentlemen, you were naughty. You knew what we wanted from you but you failed to deliver. Now we'll say that you were wrong although you were the Court of Final Appeal and we'll have you corrected in Beijing. So in future when you have to try other similarly politically sensitive cases, you'd better think about it before you pronounce judgment. Because if you rule against us again, you know we will go to Beijing again and have you corrected once more."
Right after the reinterpretation was obtained, I've been saying in Hong Kong, to many of my friends, that I was extremely worried about the consequence of that act of reinterpretation. I said: One day, and the day may come very soon, one or more of the judges on the Court of Final Appeal may start asking himself or themselves this question: "What am I to do in this case? I do not agree with the submissions of counsel for the government. But if I were to give judgment against the government by upholding the law as I want to, what is going to happen? They will go to Beijing again and say that we were wrong and have us corrected once more. So what we will be doing is really to create another constitutional crisis. So am I doing this community here a service or disservice by trying to uphold the law?"
Once they begin asking that question, I said, we will be going down the Singapore way or the Mainland China way, which is, the government can never be wrong.
There can be little doubt that the Hong Kong government has won. Indeed it has won in a big, big way. But at what cost to Hong Kong?
The common law which is so important for this community for the protection of human rights and individual freedoms has now become the common law with Communist characteristics, or if you like, uncommon law.
No country can hope to preserve the rule of law by relying on the integrity of the judges alone or even the integrity of the judges and lawyers. It needs the support of the community, and more importantly, the government. But as we have seen this year, this government is not that keen in preserving the rule of law although it said so. It wants to win and it wants to win every case, and if necessary, by going to Beijing.
How can Deng Xiao-ping's policy of "One Country, Two Systems" be successfully implemented when you have this sort of government?