No Confidence in Hong
Kong's Highest Court
By Martin C.M. Lee
- Today, for the first time in Hong Kong's 150-year history, there will
be a vote of no confidence in a sitting colonial governor. If passed in
a conventional parliament, such a motion would bring down the government.
My party has called the vote because Governor Chris Patten and the British
government have done the one thing sure to damage international confidence
in the prospects for Hong Kong's post-1997 future: give China control over
our legal system.
- Since his appointment as the last colonial governor of Hong Kong, Mr.
Patten has travelled the world stressing the importance of the rule of
law to Hong Kong's future. He was right to do so. Common law and the rule
of law are indisputably Britain's greatest legacy to Hong Kong. But last
month's Sino-British deal on our Court of Final Appeal (CFA) marked a shabby
end to that legacy, and a tacit acknowledgment that from here on out, Beijing
-- not London -- is calling the shots.
- The Chinese text of the CFA deal says that our highest court shall
have "no jurisdiction over acts of state, such as defense and foreign
affairs, etcetera." It is this "etcetera" that is so worrying
here, as it should be to the people throughout Asia who do business in
- One of Mr. Patten's main selling points for the CFA deal is that Britain
has secured China's agreement that there will be "no post-verdict
remedial mechanisms," which the governor says was Beijing's initial
demand. With the CFA agreement, however, Britain has handed China a more
effective and less obvious tool for manipulating our legal system before
the verdict, when political authorities -- the Standing Committee of the
National People's Congress -- may decide which cases involve "acts
of state" and are thus out of judicial bounds.
- This is one reason why the Hong Kong Bar Association and both major
political parties in Legco have condemned the CFA deal. It is also the
reason why various local chambers of commerce should be very worried about
their members' chances in court after 1997. After all, the only "certainty"
of a common law with Chinese characteristics is that investors can never
know whether or not their opponent in court will have the clout in
Beijing to have their cases thrown out.
- In the past decade, almost 60% of the 529 listed companies on the Hong
Kong stock exchange have moved their legal domicile to Bermuda or the Caymans,
where access to the Privy Council continues. Now, if the CFA deal is as
good for Hong Kong as Britain and the chambers claim, how many will return?
Can we expect Jardines, for example, which launched the exodus in 1984
to "have access to the Privy Council," but now praises the CFA
deal, to lead a stampede of companies shifting their legal domiciles back
to Hong Kong? Probably not. Despite public support for the deal, investors
have privately begun to comprehend that the rule of law in Hong Kong after
1997 may not be unlike what prevails in China today -- at a time when the
rule of law in China looks worse than ever, with piracy, kidnappings of
businessmen (more than 20 in the past three years), and high-profile contract
disputes with major international investors such as McDonalds.
- The only question is whether the distortions of our legal system will
be blatant and spectacular, involving contracts worth millions of dollars,
or more subtle, applied only when Beijing needs desired political result.
Maybe abuse will be limited to cases of so-called "spies" like
Harry Wu, to journalists who "steal state secrets" like imprisoned
Hong Kong reporter Xi Yang, or to abducted businessmen like James Peng,
who fall prey to cadre corruption.
- One thing is certain: Overnight, our independent, transparent and consistent
judicial system is due to become something very different. We are left
only to wonder how different.
- Ironically, though Chinese leaders may not now realize it, the real
loser in the CFA agreement could be China itself. On Monday, Xinhua quoted
chairman of the China Law Society Zou Yu as saying wanted to promote "the
legal system construction in the country." Sadly, he and other reformists
in China, such as Qiao Shi, who have expressed concern about the lack of
a rule of law will not now have a working example of what an independent
legal system is. The CFA agreement has effectively deprived them of a Hong
Kong model for establishing their own modern rule of law, so necessary
for membership in the World Trade Organization and other international
- Or perhaps what China really wants is to transfer its authoritarian
system wholesale to Hong Kong. Certainly without the check of a credible
legal system, it now has the ability to do so.
- But we in Hong Kong and around the world have two years to explain
to China why that would be such a bad idea. We must convince China's leaders
that in today's global marketplace, money travels around the world at the
speed of light. And as Mexico -- and even China -- have learned the hard
way, money which flows in can flow out again just as quickly. If international
investors believe our legal system is a lottery, many will simply refuse
- Finally, we cannot simply rely on good intentions and self-restraint
of Chinese leaders and businessmen not to abuse the power they have been
given over our legal system. We must vigorously pursue legal and constitutional
reform to shore up and insulate our courts. To make sure China does not
inherit the dormant colonial controls wholesale, we must abolish numerous
draconian colonial laws dealing with treason, official secrets and sedition.
And in case Beijing fails to understand the damage it will do by not keeping
its hands off our legal institutions, we must create a Human Rights Commission
and make the Legal Aid Department independent of the government. We have
barely 700 days left.
- In Singapore just four months ago, Mr. Patten said, "To turn a
blind eye to the stealthy or brazen chipping away at the architecture of
freedom and the rule of law is to connive at their destruction. Great tragedies
are invariably the aggregate of a thousand small betrayals." Those
and thousands of other fine words about the rule of law can not conceal
the fact that in the end Britain's greatest legacy to Hong Kong was betrayed.
- For those of us -- legislators, citizens and investors both local and
international -- who will remain in Hong Kong after Mr. Patten leaves on
June 30, 1997, the real fight to save Hong Kong and our rule of law has