If it's broken, fix it

PUBLISHED : Tuesday, 19 April, 2005, 12:00am
UPDATED : Tuesday, 19 April, 2005, 12:00am

Hong Kong's legal community is planning another silent march today. Wearing dark suits, lawyers will solemnly walk from the High Court in Pacific Place to the Court of Final Appeal on Battery Path to protest at the request for a Basic Law interpretation on the length of tenure of a chief executive elected to fill a vacancy in mid-term.

This form of protest is a very potent weapon. For one thing, lawyers in Hong Kong - especially barristers - enjoy a special place in the minds of most people. They are seen as high-minded and principled, acting in the best interests of Hong Kong. And when they stage a protest, it is solemn and dignified.

Such protests, to have an impact, must be rare, and the issues must be carefully chosen. It is six years since the lawyers last staged such a protest. In June 1999, they held their first silent march to express their outrage over the government's decision to seek an interpretation from Beijing on the rights of mainlanders who are children of Hong Kong permanent residents to live in the special administrative region.

The government acted after the Court of Final Appeal ruled against it - in a judgment considered provocative by the central authorities. The administration, fearing that the SAR would be swamped by mainland migrants, sought a Basic Law interpretation from Beijing.

This time, the government is asking for an interpretation before the courts have had a chance to act. Arguably, such a move is less damaging to the rule of law than seeking to overturn a court judgment. Nonetheless, it is understandable why the lawyers are angry. To them, the law is clear and needs no interpretation from Beijing.

In the right-of-abode case, the National People's Congress Standing Committee resorted to 'legislative intent' and an 'opinion' of the preparatory committee delivered in 1996 to support the Hong Kong government's case that right of abode should be limited to those mainland residents whose parent or parents were already a permanent resident at the time of the mainlander's birth. This time, the government's case appears even flimsier. It will be interesting to see how the standing committee justifies the decision to limit a new chief executive to the remaining portion of his predecessor's term. It certainly cannot be found in the Basic Law.

There is speculation - to which I do not subscribe - that Beijing wants to limit the term of the chief executive to be elected in July to two years simply because it wants that time to observe the behaviour of the new leader before deciding whether to give him five more years in 2007.

I think that even if a candidate had Beijing's full trust, he or she would not get a five-year term. I believe that Beijing's attitude is a reflection of the mainland system and is not cynically self-serving.

That said, there is nothing in the Basic Law to support the interpretation that both the Hong Kong and central governments want. Instead of an interpretation, the mainland parliament should amend the Basic Law.

It is encouraging to learn that mainland authorities have commissioned Hong Kong legal experts to launch a full-scale review of the Basic Law to identify which areas should be amended. But this is much too sweeping an approach; it is tantamount to rewriting the Basic Law, which is not necessary and is potentially dangerous.

It would be much better if Beijing accepted the concept of amending a part of the Basic Law whenever a problem emerges that shows the wording to be unclear. This would certainly be much more acceptable to Hong Kong's legal community.

Frank Ching is a Hong Kong-based writer and commentator