IT is a rare honour for one of these effusions to provoke a reply from the Director of Administration of the Government Secretariat, so I am afraid we will have to re-visit that much-ploughed battlefield, the Court of Final Appeal. R. Hoare accuses me (Letters, December 19) of 'unquestioning acceptance of the myth . . . that the composition of the court set out in the Bill contravenes the Joint Declaration (JD) and the Basic Law'. Now I did not mention the Joint Declaration, actually. Contraventions of the JD have become so commonplace that the possible arrival of another one is of no interest. The Basic Law, however, has so far passed among us as a law like any other - to be applied, after the relevant date, to government and subjects alike. Faced with a question whether something contravenes the Basic Law one does not, at least where I come from, accept it unquestioningly as a myth or otherwise. One reads the Basic Law. I quoted the relevant passages, which are quite short. Having performed this simple manoeuvre one is likely to form an opinion about whether the proposed Bill conflicts with the Basic Law or not, and my opinion is that it does. I am not a lawyer. But this is a view, shared, apparently, by almost every lawyer in Hong Kong in 1991. Since then, says Mr Hoare, the British Government has consulted further lawyers and issued an 'authoritative statement which sets out clearly why the 1991 agreement is consistent with the JD'. Just a minute, though. We weren't talking about the JD. We were talking about the Basic Law. This is not a British law and it was not drafted by British lawyers. In fact British lawyers are no more entitled than the rest of us to issue 'authoritative statements' about it. In any case, the language of the law is not yet so arcane and obscure that lay persons are required to abandon their common sense and personal judgment when approaching a legal text. The Basic Law says what it says. The meaning of the relevant phrase is perfectly clear. But we are enjoined, in any case, to consider the 'wider issues at stake'. What Mr Hoare means by this is that if the ordinance is not passed (and in the light of recent events I suppose that means passed without any impertinent amendments) then there will be no court in 1997 and possibly for 'up to two or three years' thereafter. It is rather disappointing to find this argument, which is really about administrative convenience, masquerading as a 'wider issue' concerning the people of Hong Kong. But the point is surely not whether the practical arguments for setting up a court now have merit, but whether they are properly considered in the same breath as the legal issues. If the proposed Bill is a violation of the Basic Law then it will still be a violation whether the resulting court is better or worse than alternative courts, or for that matter than a 'judicial vacuum'. There is nothing particularly narrow about the issues which underlie the opposition to the CFA Bill. If you believe that the Bill conflicts with the Basic Law then the question is whether the Chinese and British Governments can put their heads together and overrule the clear expression of the relevant law. And if you accept that they can, now, does it not follow that the Chinese Government alone, after 1997, will also be able to overrule the clearly expressed rules of established law? This is a wide enough question, in all conscience, and if we give the wrong answer to it then there is not much point about worrying who sits on any particular court. Mr Hoare will say, of course, that this question does not arise because the Bill is in accord with the law and the Declaration. No doubt this is a respectable point of view shared by many people outside the Government Secretariat. It is not, however, shared by me. Since the signing of the Joint Declaration almost every word in it has been subjected to creative 'interpretations'. Some of these words have been so creatively interpreted that they are scarcely recognisable in the syllables which fell from Sir Geoffrey Howe's lips 10 years ago. Look at what happened to 'elections'. It has been distressing to watch the eager connivance in this process of the British Government and its local small horses. Is the same process of linguistic erosion now to be applied to the Basic Law?
