Our freedoms must be writ large
After keeping the public waiting anxiously for years, just months before the handover, the administration has finally presented to Legco the bill to preserve the cornerstone of the courts' power to protect individuals against secret or unlawful detention by the executive.
The writ of habeas corpus is older than the Magna Carta. The first Habeas Corpus Act was enacted in 1640.
They are given effect in Hong Kong through the Application of English Law Ordinance, due to lapse upon the change of sovereignty. 'Localisation' by means of incorporating the 1679 and 1816 Acts into the Supreme Court Ordinance is necessary if the Hong Kong courts are to continue to exercise this power after July 1.
This is one of the swiftest and most powerful writs of the court. A writ may be applied for on behalf of a person under detention. Within the shortest possible time, the authority detaining this person will be ordered by the court to bring him to court, and there to justify the lawfulness of that detention. Unless the lawfulness of the detention is justified, the court will order the release of that person.
Given the fears of the public of secret arrests and political prisoners, the importance of this powerful safeguard of personal liberty cannot be exaggerated.
What we need is not just the writ in name. Not just the illusion of having habeas corpus provisions added to our law. We must have the writ in full force, unweakened and uncomplicated.
Regrettably, this does not seem to be the concern of the administration.
While introducing the Supreme Court (Amendment) Bill into Legco, officials appear to be more concerned with retaining important powers for executive authorities who detain, than with the protection which someone in Hong Kong may need after July 1.
Under the proposed section 22A(11), the bill in effect allows the detaining authorities to remove the detained person out of Hong Kong without telling the court while an application for a writ of habeas corpus concerning that person is still pending before the court, awaiting the court's decision.
This is fundamentally wrong. It undermines the whole aim of the writ, namely, to have the person released here and now if he is wrongly detained. It makes the writ meaningless.
The fact that the detaining authorities can remove the person somewhere outside Hong Kong without letting anyone know where he is removed to is horrifying.
Further, once a writ is before the court, the court has the keeping of this person. How can anyone just remove him beyond the court's jurisdiction without the court having disposed of the matter? The argument of officials representing the administration is that the objective of a writ of habeas corpus is the release of the person. When the person is removed from Hong Kong he is in effect released because he has been sent from the territory! This flies in the face of common sense. These officials are able to advance such an argument because their minds are trained on Vietnamese boat people who happen, currently, to be the largest group of people applying for writs of habeas corpus.
To these officials, to be able to remove these Vietnamese applicants out of Hong Kong must be the speediest and most convenient way of dealing with the situation, not least because a large number can be dealt with at one go. Once they are gone, there is no need to argue the rights or wrongs of their earlier detention.
But, whether this is the proper or improper way to deal with Vietnamese migrants, these officials ought to realise that the provisions in this legislation will affect a far wider range of people.
It is not only Vietnamese migrants who are vulnerable to removal from Hong Kong. So are people who are subject to extradition. So are people who are wrongfully treated as people without the right to land or right of abode. After July 1, this last category of people may well be greatly increased and more various.
Indeed, it is not yet certain who is entitled to the status of permanent resident after July 1. Just as many will have acquired that status, many may lose it because of a change of law. The situation may arise that the executive authorities seek to deport certain people for their unwelcome views.
If these people were to apply for a writ of habeas corpus on the grounds that since they cannot be deported they are wrongfully detained, but the deportation can take place before the court gets to hear the case, what good will the writ be to them? One answer of the administration's representative was, if you want to ensure you will not be removed, apply in addition to and simultaneously for something called an 'interlocutory injunction' forbidding your removal. But why? Why must there be a multiplicity of proceedings when the habeas corpus should have that effect already? Not only should we not go out of our way to limit the power of the writ, we should actively explore whether the jurisdiction of the court regarding this ancient writ will be changed in any way after July 1 because of the Basic Law.
For example, under Article 19, the court has no jurisdiction over 'acts of state such as defence and external affairs'. Further, defence and external affairs are, in any event, outside the scope of the autonomy of the SAR. Does it mean that, if someone in Hong Kong is suspected or charged of an offence against the state (for example, treason or sedition) where allegedly an element of defence is involved, his detention will be beyond the reach of a writ of habeas corpus? 'Extradition' being said by the Chinese authorities to be a concept inapplicable between the SAR and the mainland, and likewise all the conditions which have to be met before a person can be extradited, does it mean this person can then be secretly removed to China without anyone being able to do anything? These are daunting questions, but we have to treat them with great seriousness.
We should be doing our best to preserve every safeguard we have now for personal liberty instead of giving any of it away.