One step forward
For many months, the political debate over the transition has been marked by accusation and counter-accusation about the legality of every move the provisional legislature makes. Now, at last, one aspect of that argument has moved forward following yesterday's High Court ruling granting legal aid to the Democratic Party's challenge to the validity of all laws passed by the interim body before the handover.
Freed from their fears about being forced to foot a multi-million-dollar legal bill, the litigants can now push ahead without delay. The lawsuit is expected to be lodged as early as next Monday. The party hopes the courts will give it priority, possibly allowing the case to be heard before June 30.
That may prove to be an unrealistically optimistic timetable, given the slow pace at which the wheels of justice usually grind. But it is in everyone's interests that the uncertainty surrounding the actions of the provisional legislature should be resolved as soon as possible. If public funds can help to hasten this process, that is a small price to pay.
But there must be very real doubts about whether this lawsuit, even if it is heard before the handover, will mark the end of the issue. Yesterday's decision only provides legal aid to challenge laws now being passed by the provisional legislature, such as the Holidays (1997 & 1998) Bill, and to seek to have them declared null and void in Hong Kong.
The legality of the legislature itself is not under threat on this occasion. But, after the Basic Law comes into force on July 1, further challenges are almost certain to follow. The future Secretary for Justice, Elsie Leung Oi-sie, has already warned that litigants will use provisions in the Basic Law to challenge the very existence of the body.
The litigants should go into this with their eyes open. If the current case succeeds, the practical consequence will be that the provisional legislature will go ahead and pass all its laws again after the handover. A challenge to the existence of the interim body is likely to revive the political controversy caused by those who suggest this should be treated as an Act of State.
Democrats are right to argue that the mess which will inevitably result from such a succession of lawsuits is not of their making. They were not the ones who created a legislature so open to challenge in the courts. Given their immediate political outlook and the incapacity of Britain to offer any practical help, they are bound to see the law as their best avenue of attack. But this battle has begun very late in the day, and the possibility must be that it may not be fully resolved before the provisional legislature, itself, has gone out of existence.