Just what can Beijing teach us?

PUBLISHED : Wednesday, 13 April, 2005, 12:00am
UPDATED : Wednesday, 13 April, 2005, 12:00am

What are we to make of the extraordinary statement by acting Chief Executive Donald Tsang Yam-kuen - in defence of his request for an interpretation of the Basic Law - that we lack experience of constitutional law? Or that Secretary for Justice Elsie Leung Oi-sie changed her understanding of the provisions on the chief executive's term on the advice of mainland experts? Or the warning that we shall continue, for the time being, to require interpretations?

Until now, no one has ever hinted at China's expertise in constitutional law. Even its leaders regularly emphasise the need to reform the constitutional and legal system, give greater independence to the judiciary and introduce new laws for better accountability, predictability and public confidence.

All objective scholars of Chinese law complain about the absence of clear legal principles, the lack of legal security, arbitrary detentions, the difficulties of enforcing judgments, the absence of consistency, and the systematic disregard of legal norms, safeguards and procedures. Few rights are respected and there are extensive restrictions on the freedoms of expression and conscience. Under China's constitution, the Communist Party is supreme; above the law. All organs of the state, including the National People's Congress, are bound by and have to implement party policies. Few authorities or individuals take the law, particularly the constitution, seriously. Most senior legal professors are party members and have to toe the line.

Standing Committee interpretations play an insignificant role in the mainland because no executive decision can be challenged. The result is the poor skills of legislative interpretation. There seem to be few rules and no, or little, reason for the decisions. This is clear from the Basic Law interpretations (on citizenship, the repeal of former laws, the right of abode, or the pace of constitutional reform). They are more like diktats.

Consequently, they do nothing to explain fundamental constitutional principles and modes of legal reasoning, or to develop precedents, and thus provide no basis for predictability. And their effect is to produce incoherence in the scheme and provisions of the Basic Law. The letters from mainland experts, on which Miss Leung relies, amply demonstrate the opportunistic basis of 'legal reasoning'.

These points are abundantly clear from the fact that those who advocate an interpretation know the result in advance. This is distortion, not interpretation, of the law.

One of the major issues in the negotiations for the Joint Declaration and the drafting of the Basic Law was how the more principled doctrines and approach of the common law, essential to Hong Kong's way of life, could be preserved in the face of a Leninist legal system. The Basic Law makes common law the foundation of the legal system - no mainland laws can apply directly here, and mainland courts have no role in respect of Hong Kong. But Beijing refused to shackle the powers of interpretation by the Standing Committee, which were correctly identified as the major threat to the rule of law.

Even then, in wildly optimistic moments, some hoped that the superior technique, and the foundations of constitutionalism implicit in the common law, would rub off on the mainland, which then seemed destined for major reforms. The rule of law seemed - also perhaps without full justification - to define Hong Kong's very identity. At least, many entrusted great confidence for the future in it.

Now, with no scruples, our leaders castigate the common law for its inadequacies, confess our lack of experience of constitutionalism, and look to that paragon of legality and democracy, the mainland, for instruction. Seemingly unaware of what the rule of law entails, they are content to preside over its demise, and the demise of autonomy.

Yash Ghai is the Sir Y. K. Pao Professor of Public Law at the University of Hong Kong