The rule of law is now at stake

PUBLISHED : Sunday, 18 April, 2004, 12:00am
UPDATED : Sunday, 18 April, 2004, 12:00am

There once was a time, not so long ago, when the Basic Law was looked upon with fondness and affection. The little red book was like a faithful friend, there to provide reassurance in times of uncertainty. No more.


The dependable nature of this constitutional companion first showed signs of weakening during the right-of-abode crisis five years ago. Over the past two weeks, in the context of political reform, it has undergone a personality change. Like an adolescent - it turned 14 this month - the Law has become unpredictable and subject to mood swings. We can no longer be sure what it means.


This process began in 1999, with the central government's first interpretation of the Basic Law, which overturned a judgment by our top court. Earlier this month, it used the power again to introduce new procedures for changing the political system.


Then, on Friday, Tung Chee-hwa's taskforce on constitutional reform started playing the interpretation game. In a report endorsed by the chief executive, it expanded, elaborated upon and explained the meaning of key provisions of the Basic Law. Take, for example, the constitutional requirement that reforms must take place in light of the 'actual situation in Hong Kong'. According to the taskforce, this means taking into account all manner of different factors. They include public opinion, social conditions, economic development and even the 'maturity of political talent and political groups'. Don't waste your time looking for any of these considerations in the Basic Law itself. They are not there.


The taskforce has embarked on the sort of exercise which, in common-law legal systems, would be normally undertaken by a court. It is worth reminding ourselves that the taskforce is headed by the chief secretary, not the chief justice.


No doubt Donald Tsang Yam-kuen and his team went about the task diligently and honestly. But their conclusions could have serious consequences. These new interpretations of the Basic Law have been included in Mr Tsang's report to the chief executive. What is their status, I wonder, if that report is approved by the Standing Committee of the NPC? Will these interpretations be binding on Hong Kong? It would seem that there is potential here for a new interpretation to be delivered by Beijing through the back door.


The Standing Committee, we should remember, is the political body which has the ultimate power to interpret the Basic Law. We might argue that this cannot be done simply by approving the report. This would involve sidestepping the procedural requirements governing formal interpretations.


However, once the taskforce interpretations have been adopted by Beijing, it is difficult to imagine that they could be altered. Is there really any possibility that our courts - or our legislature - would disagree? This is most unlikely.


What has all this got to do with the changing nature of our old friend the Basic Law? After all, the Standing Committee has the legal power to interpret the Law. And the principles laid down by the taskforce are consistent with political reality - which involves persuading the central government to let us change our political system.


The answer lies in the part all this plays in the erosion of the Basic Law's status as a constitution for Hong Kong. The value of the Law lies in having entrenched provisions which, among other things, protect our rights and freedoms.


But these provisions are worthless unless they mean what they say. And there is little point in them if they are subject to sudden change. This is why the events of the past two weeks have such disturbing implications for the rule of law. If people can be denied the right of abode by a ruling in Beijing, and new legal requirements on political reform can be effectively written into the Basic Law, either by the Standing Committee or the taskforce, we might wonder what the future holds for other provisions. Suddenly, the Basic Law seems malleable and murky.


The powers of the central government under our constitutional arrangements should be acknowledged and respected. But if the rule of law is not to be undermined, Beijing's power of interpretation is one which, in future, simply should not be used.


Only then can the Basic Law become dependable again, and work its way back into our affections.