Points of order

PUBLISHED : Monday, 04 June, 2007, 12:00am
UPDATED : Monday, 04 June, 2007, 12:00am

The death penalty will return, court staff will become corrupt, no one will bother to file lawsuits against the government and human rights lawyers will be thrown in jail: some of the dire predictions about the future of the legal system as the handover and a new constitutional era approached.

A decade later, the worst fears have not been realised. The common law remains in place and, in many respects, the system is much the same as it was in 1997. Even the traditional wigs and gowns have survived. But the transition has not been smooth.

'Things have gone much better than the worst pessimists thought. I know many people who thought 'one country, two systems' would not work and within a few months it would all be a memory,' said Paul Harris, SC, a founding member of the Hong Kong Human Rights Monitor.

'Ten years ago, both friends and opponents were telling me I should get out of Hong Kong, and I was told by some I would be sent to prison. Instead I have become a senior counsel. But it has been a very uncertain roller-coaster ride.'

The roller coaster took a steep dip when a landmark human rights ruling by the new Court of Final Appeal sparked a constitutional crisis. The decision was effectively overruled by Beijing, raising concerns about the integrity of Hong Kong's system and the rule of law.

The dust has largely settled since the dramatic events of 1999, but many troubling questions remain. 'There are lots and lots of unresolved issues. I am not sure it is necessary to rake over them all. But at least we should recognise they still exist and that they require sensitive handling on both sides,' former Bar Association chairwoman Gladys Li, SC, said.

The biggest disputes have arisen over the relationship between the two legal systems under the Basic Law, which came into force on July 1, 1997. Effectively a new constitution, the Basic Law underpins the 'one country, two systems' concept. But questions immediately arose as to how it should be interpreted and, crucially, by whom. The stage was set for a clash between Beijing and Hong Kong's courts.

The first test came only two days after the handover when defence lawyers in a criminal trial raised a potentially explosive point. The laws that existed before the handover, they claimed, had not survived the transition. Therefore, it was argued, their clients could not be prosecuted.

Ms Li was one of the lawyers who hurriedly stepped in to represent the defendants after they were controversially refused legal aid for anything other than a watching brief. Her concern was to make sure that the issues were properly argued.

Looking back, Ms Li said she was 'catapulted' into the case. 'It took me by surprise. I had to do the best I could in the circumstances. I was not fully prepared,' she said.

The Court of Appeal ruled on the case in July 1997 and held that the Basic Law provided a valid basis for the continuation of the legal system. This would have been sufficient to decide the case, but the judges decided to go further.

They ruled the creation of the Beijing-appointed provisional legislature was consistent with the Basic Law and - significantly - that Hong Kong courts had no authority to challenge Beijing's actions.

While the government welcomed the decision, questions were raised about how this might affect Hong Kong's high degree of autonomy and rule of law.

Ms Li had urged the court not to make its ruling so broad as to cover issues such as the provisional legislature. 'These were very early days,' she said. 'We could not possibly think of all the implications of rulings as major as this. We were still finding our feet. I had hoped that the court would take a minimalist approach.'

The ruling sowed the seeds for a bigger controversy. This was the bid by migrants from the mainland with a Hong Kong parent to claim the right of abode.

Many had come to Hong Kong before the handover hoping to assert this right under the Basic Law. But limits on its scope were swiftly imposed by the provisional legislature.

An epic series of court battles was to follow.

They reached a climax in January 1999, when the Court of Final Appeal delivered its first constitutional ruling. The two-hour judgment read by Chief Justice Andrew Li Kwok-nang - and the events that followed - marked a defining moment for Hong Kong's legal system.

The court ruled against the government on key points, holding that many more people were entitled to the right of abode than the government claimed, prompting fears of a huge influx from the mainland.

More importantly, the court sought to assert its own powers under the new constitutional arrangements, ruling that it had the power to interfere with decisions of the National People's Congress that were inconsistent with the Basic Law.

This provoked a backlash from legal experts in Beijing and culminated in the Hong Kong government asking the National People's Congress Standing Committee to interpret parts of the Basic Law already ruled on by the court.

This decision, said by officials to be necessary to prevent Hong Kong being swamped by 1.6 million mainlanders, took concerns about the integrity of the city's legal system to new heights. Several hundred lawyers even took part in a protest march against the move.

The interpretation, delivered by the Standing Committee in June 1999, under powers provided for in the Basic Law, reversed some of the top court's core findings. It drastically reduced the number of mainlanders eligible for right of abode. The validity of the decision was later upheld by the Court of Final Appeal.

Then-chief executive Tung Chee-hwa hailed the interpretation, saying it had 'made a giant step towards solving a very difficult problem'. But it left many abode claimants feeling betrayed. It also asserted the right of the Standing Committee to have the ultimate say on the Basic Law, even after a court has ruled. This was unexpected and raised difficult questions.

When would the government next seek an interpretation from the committee? Would Beijing become a new avenue of appeal for litigants who were unsuccessful in Hong Kong's courts? Where did all this leave the Court of Final Appeal?

'The reinterpretation was terrible and has had a lasting, chilling effect on the whole Hong Kong system,' Mr Harris said. Ms Li describes it as 'one of the most shameful episodes of the last 10 years'.

Restraint on all sides has, however, prevented a similar crisis from arising again. The government will not rule out requests for interpretations from Beijing. But it has refrained from taking such a course again. The Court of Final Appeal has since ruled on other sensitive cases concerning the Basic Law - and not always in favour of the government. The court has not referred any cases for interpretation.

Yash Ghai, a leading authority on the Basic Law, suggests the Court of Final Appeal has 'tended to occupy a middle ground between activism and caution'. In an article to be published by the University of Hong Kong at the end of this month in the Pacific Journal of Public Administration, he says: 'The Court of Final Appeal has had to tackle difficult, politically sensitive cases, and has on the whole discharged its responsibility with wisdom and distinction.'

But there have been other interpretations of the Basic Law by the Standing Committee that have not been initiated by Hong Kong. One imposed limitations on political reform in April 2004 and another, a year later, determined the length of Donald Tsang Yam-kuen's first term as chief executive. Each settled a problem that has arisen with regard to how the Basic Law is to be interpreted.

But Professor Ghai, in the article, argues that the way in which Beijing's power of interpretation has been used has undermined Hong Kong's autonomy.

'Now Beijing turns legal into political issues so that it can use 'political means', such as interpretations of the NPCSC, to deal with them,' he said. 'The politics of law have been overturned by assertions of hegemony. The foundations of autonomy were built on sand.'

Basic Law Institute director Alan Hoo, SC, said Beijing's actions had been largely misunderstood in Hong Kong. Beijing, as the sovereign power, had been seeking to meet its responsibilities under the Sino-British Joint Declaration, which guaranteed the central government's basic policies towards Hong Kong, on matters such as the right of abode, he argued.

Mr Hoo believes there is a need for a formal channel of communication between Beijing and Hong Kong on matters concerning the central government, perhaps through the State Council establishing an office in the city.

'At present, the only way they can speak authoritatively to the people of Hong Kong is through interpretations,' he said. 'Once they do that there is an outcry in Hong Kong and people take to the streets. There is this constitutional tension in terms of the relationship. We need to define the relationship and regularise it so there can be a proper discussion of these matters. Otherwise, the only way to deal with them is through constitutional confrontation.'

Despite the controversies, there is a general feeling that the legal system has fared better over the past 10 years than many expected.

Andrew Bruce, SC, a former Department of Justice lawyer who is now in private practice, said the fact people had been prepared to challenge the government in court was a positive sign. There have been more judicial reviews, ranging from civil service pay cuts to harbour protection, public housing rents and The Link Reit listing. 'It snowballed once people realised it was possible and that it might succeed. Of all the branches of government, I think the judiciary has done the best job,' Mr Bruce said.

But Mr Harris remained cautious. 'It is difficult to challenge the government successfully. At the handover Hong Kong got the Basic Law, which was supposed to provide extra protection for rights. It has to some extent, but I am concerned that in certain areas there is a culture of reluctance to offend the authorities.'