The Asian Wall Street Journal, March 1, 1999

On Defending Hong Kong's Judiciary

By Martin C.M. Lee

HONG KONG -- Last week, the Hong Kong government set a dangerous precedent, both legally and politically, by seeking clarification on a landmark constitutional case recently decided by the territory's highest court. Arguing that the Court of Final Appeal's late January verdict on immigration from mainland China might be misunderstood "in certain quarters," a not so subtle reference to Beijing, the government asked the court to restate parts of the decision which asserted the court's jurisdiction to decide whether central government actions are in accordance with the territory's constitution, the Basic Law.

The government's apparent goal was to make the decision more palatable to Beijing. The gambit didn't entirely succeed. The court did not reverse or modify its ruling, although it did issue a statement reiterating the supremacy of the National People's Congress and the NPC Standing Committee. The reaction here, from the Bar to ordinary citizens, was unequivocally critical. The government's motion introduced political pressure into the legal system in an unprecedented way. Just as the government's intervention in the financial markets last summer changed perceptions of the fairness of Hong Kong's economy, last week's events dealt a devastating blow to the reputation of Hong Kong's judicial system.

The drama began Jan. 29, when the Court of Final Appeal struck down a law passed by the provisional legislature, the body installed by Beijing for the first year of Hong Kong's existence as a special administrative region of China. That legislature imposed restrictions on the rights of mainland children with Hong Kong

parents to live in Hong Kong. The court found that these were contrary to the Basic Law's more liberal provisions granting the right of abode to any mainland person with one parent who is a Hong Kong permanent resident.

The social and economic consequences of thousands of mainland children coming to Hong Kong are enormous. However, the verdict's greatest implications relate to the legal principles expressed by the court. In the judgment, the court, which is just 18 months old, articulated its powers and jurisdiction, including its authority to review actions by the Hong Kong and central governments. Citing the Basic Law, the court asserted its jurisdiction to "examine whether any legislative acts of the National People's Congress or its Standing Committee . . . are consistent with the Basic Law and to declare them to be invalid if found to be inconsistent."

This holding would be unremarkable in democratic countries based on the rule of law. However, it is deeply troubling to Chinese leaders who view courts as simply a part of the Communist Party's governing apparatus. A chorus of criticism steadily mounted from Beijing and its proxies, after the Hong Kong court's ruling. Hong Kong toady deputies to the National People's Congress criticized the ruling and called for it to be changed, and several mainland law professors weighed in against the ruling. Then Zhao Qizheng, a spokesman for the State Council, the Chinese equivalent of a cabinet, pronounced the decision a "mistake" which should be changed.

Finally, Hong Kong's Secretary of Justice Elsie Leung traveled to Beijing and received a behind-closed-doors admonition that the judgment should be "rectified." Soon after, the Hong Kong government announced a motion seeking "clarification" of the ruling. Such motions are unheard of in Hong Kong, as courts normally only elaborate on judgments to correct clerical errors or resolve confusion over instructions for implementation of a remedy. Adding insult to injury, the government confirmed an ex parte contact with Chief Justice Andrew Li, although it insisted it had simply given "polite notice'' of the government's action.

The immediate crisis may subside if China decides the court's new statement was sufficient. Beijing has sent a signal that it may be. Some observers see the statement by the local Xinhua news agency calling the court's action "a necessary step" as a preliminary sign that an end to the controversy is in sight. Meanwhile, foreign diplomats hopefully liken the events of last week to a kabuki play, in which each actor plays his role in an exaggerated pantomime. According to this view, the court was drawn into an exercise in which it gave face to the central government at the expense of the Hong Kong judiciary's independence and professionalism, but with further action by the central government forestalled. Such an outcome is desired by many who prefer not to stand up to Beijing over the matter. For them, the political pressure on the court, culminating in a pledge of allegiance to the central government, was the least bad of several scenarios, and therefore a good outcome.

The international community should not fool itself. Beijing may yet choose to curtail the authority of the Court of Final Appeal by recourse to the NPC Standing Committee, which has final authority to interpret the Basic Law. If the international community is truly committed to standing up for the rule of law, now is the time to speak up. Even if the National People's Congress does not act on the matter, a dangerous precedent has been set. A seed of doubt has been sown in the minds of Hong Kong people and the international community about the finality, and the fairness, of justice in Hong Kong.

The controversy over the Court of Final Appeal's judgement is ironic. When the court was being set up in the final years of British rule, Beijing issued a barrage of outrageous demands, including a "post verdict remedial mechanism" which would allow the National People's Congress to overrule the high court. The British rejected this blatant attempt at subordinating Hong Kong's legal systems to the political dictates of the Communist Party.

Despite its commitments to the contrary, Beijing has not abandoned the idea of exerting control over Hong Kong's legal system. This last episode was not entirely successful. The judges refused to alter their judgement. But a disturbing precedent has been set, and Beijing demonstrated once again how readily it will break its commitments not to interfere in Hong Kong's affairs.

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