29 July 1997

The Democratic Party Regrets Court of Appeal Decision on Legality of Provisional Legislature

Democratic Party Chairman Martin Lee and party Legal Affairs Spokesman Albert Ho today expressed strong regret at the ruling by Hong Kong's 3-judge Court of Appeal that the legality of the Provisional Legislative Council (PLC) appointed by China cannot be challenged in Hong Kong courts. While conceding that the Provisional Legislature may not be properly constituted under Article 68 of the Basic Law, which requires the "Legislative Council of the Hong Kong Special Administrative Region shall be constituted by election," presiding Justice Patrick Chan declared that "there is simply no basis" under which a regional court could rule on a matter decided in a resolution earlier this year by the National People's Congress (NPC). Justice Chan stated that "The PRC is the sovereign of the Special Administrative Region (SAR). I would accept that the SAR cannot challenge a decision and resolution of the NPC." Justice Nazareth said that "This court has no jurisdiction to question the legality of the Provisional Legislative Council. The PLC was validly appointed. The appointments were ratified by the NPC's decision."

Martin Lee commented:

"We are obviously very disappointed with the Court of Appeal's decision that the establishment of the Provisional Legislature is an act of the sovereign which cannot be challenged in Hong Kong courts. This case raises very serious implications for the future of Hong Kong's rule of law and autonomy.

In Hong Kong, we have the common law -- which was expressly held today by the Court of Appeal to continue. And yet under the common law, courts have the jurisdiction to interpret all the laws of Hong Kong, including Hong Kong's constitution, the Basic Law. Therefore, under the common law, our courts should have jurisdiction to decide whether the appointment of the Provisional Legislative Council is or is not in conformity with the Basic Law. And if the Provisional Legislature is in violation of the Basic Law, this could not be cured by the NPC other than by amendment to the Basic Law.

In mainland China, they do not have the common law, so they do things by interpretation and resolution, which is foreign to our legal system. But this is not Hong Kong's rule of law. There must be a basic flaw if the Chinese Central Government can ignore the Basic Law at will and Hong Kong courts cannot do anything about it. We cannot have a 'common law with Chinese characteristics' -- if 'one country, two systems' is to be at all meaningful, Hong Kong's autonomy and the jurisdiction of our courts must be maintained."

Albert Ho stated:

"There is real potential for the wrong message to be sent to China that the NPC can make decisions -- even those expressly in contravention of the Basic Law -- which cannot be challenged in Hong Kong courts. The court's decision shows the 'one country, two systems' arrangement has a legal fault which allows China's parliament to make a number of important decisions which may not be questioned by Hong Kong's courts."

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