RTHK "Letter to Hong Kong"

by Martin Lee

Broadcasted on Radio 3, RTHK, on June 6, 1999

Some things will never change. Others change too quickly I am afraid. Those who went to Victoria Park last Friday noticed large crowds of people who return year after year. I suppose the way to describe the people there would be dignified, sorrowful and perhaps a little angry - angry because the government in Beijing still refuses to recognize that the movement 10 years ago was a patriotic movement. I am sure that the Beijing leaders would like the Hong Kong people to forget about that massacre 10 years ago. But how can we? Yes, I am sure our people will continue to go to Victoria Park on the Fourth of June every year. That will never change.

But there is something that has changed far too soon perhaps. I was at a cocktail party last week where a Mr. B came up to me and reminded me that I had said to him quite a few years ago that I was not worried about the rule of law in Hong Kong during the first two years of Chinese rule. I told him that I expected trouble during the beginning of the third year. And then he said, "Mr. Lee, this is the end of the second year and look at what has happened to the rule of law now in Honk Kong." He was, of course, referring to the decision of the Hong Kong Government to seek a reinterpretation of two articles of the Basic Law after the Court of Final Appeal interpreted those articles against the Government.

I want to mention a point that has not been raised by anyone so far. The Government and all those who seek reinterpretation rely on a argument first made by the Secretary for Justice, Ms. Elsie Leung, during a Legislative Council debate on May 19, 1999. In relation to the right to interpret the Basic Law by the Standing Committee of the National People's Congress ("NPCSC"), she had this to say: "The ultimate authority for deciding that question is vested in the NPCSC. That arrangement may seem strange to those trained in the common law but it reflects the fact that Hong Kong is part of the People's Republic of China, which has a civil law tradition." From then on, that point has been repeated again and again - our lawyers and judges are trained only in the common law and we must not forget that we are now part of China which has a civil law system.

This is a highly dangerous point because one does not know how far the argument might extend. Lawyers and other people who oppose the Government's position on reinterpretation are often ridiculed because they know only the common law. I would like to remind the Government what happened in 1983 before the British and Chinese governments signed the Joint Declaration. I remember talking to Mr. Li Chu-wen of the New China News Agency one evening before dinner. I invited him to come to my chambers. I showed him the many books I kept there and I told him that all these books were English authorities. I then showed him a small number of Hong Kong Law Reports. I picked up the most recent one, opened it at random and found a case where the judge relied on a number of English decisions. I selected another case where the judge had referred to a number of English authorities but also one Hong Kong decision. Then I traced that decision in the Law Reports and we discovered that the judge had relied exclusively on English authorities. Mr. Li then said to me, "Martin, I know now that in 1997 Hong Kong must continue to use your existing laws and not the laws in China."

A few months later, I had dinner with another Chinese official from the New China News Agency, Mr. Li Ju-sheng. This time I asked him about the Court of Final Appeal and he agreed with me that it could be established in Hong Kong. When I asked him where the judges would come from, he responded, "Of course they would come from Hong Kong because our judges cannot cope with your law." I then told him that although our judges are extremely good, compared to the law lords sitting in the Privy Council - which then constituted the Court of Final Appeal of Hong Kong - there was quite a large difference in quality. I told him that overseas investors' confidence in Hong Kong would continue if we could invite some overseas judges from other common law jurisdictions to sit on the court and he agreed.

When I read the draft of the Joint Declaration for the first time on the twenty-sixth of September 1984, I was overjoyed. I found a number of provisions in it. First, it stated that after the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong - that is the common law, rules of equity etc. - shall be maintained. There is another provision which stated that the power of final judgement in the Hong Kong Special Administrative Region shall be vested in the Court of Final Appeal in the Hong Kong Special Administrative Region which may as required invite judges from other common law jurisdictions to sit on the Court of Final Appeal.

These provisions were later embodied in the Basic Law, our Constitution. For example, Article 82 says: "The power of final adjudication of the Hong Kong Special Administrative Region shall be vested in the Court of Final Appeal of the region which may as required invite judges from other common law jurisdictions to sit on the Court of Final Appeal." Note, these judges are to be invited from other common law jurisdictions and not from other civil law jurisdictions.

Of course, when we were drafting the Basic Law it was said that some Chinese national laws should be applied to Hong Kong but we took great pains to provide that they could only be introduced to Hong Kong if they are included in Schedule Three of the Basic Law. In other words, the Basic Law is a self-contained constitution and nowhere does it say that the civil law system of the PRC should be imported into Hong Kong. And so I say that our judges and lawyers ought not feel ashamed of themselves if they do not know the civil law system in the mainland. Our job is to continue to apply the common law.

I know that many judges and lawyers are discouraged by what the Government has done to the rule of law. I think our Government officials should be ashamed of themselves for not defending the common law and the rule of law. They should have spent their energy fighting to preserve the rule of law in Hong Kong and, if necessary, to speak to the Chinese leaders and persuade them that the proper way to proceed is to amend the Basic Law rather than reinterpret it. My fear is that the Government will use this method of reinterpretation again and again, but I hope that our judges will not give up defending the freedoms of the people of Hong Kong and the rule of law. I will certainly continue with this fight.

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