Ip challenges Beijing on contract for CT9

Fanny Wong

THE legal profession's representative in the Legislative Council, Mr Simon Ip Sik-on, yesterday challenged China's demand for further Sino-British negotiation on the awarding of the Container Terminal 9 (CT9) contract, saying it was entirely within Hongkong's autonomy.

Mr Ip said the interpretation of the Basic Law ''with regard to such things - contracts such as CT9 and agreements etcetera - is within the jurisdiction of Hongkong courts''.

He said that as the CT9 project had been discussed in the Sino-British Land Commission, the Chinese side had already been provided with all relevant information.

In granting the site, the Chinese side should be well aware of the tenders and other related information.

''The project has already been discussed and it is meaningless to have it discussed again in the Sino-British Joint Liaison Group,'' Mr Ip said.

China renewed its attack against the CT9 contract on Wednesday, saying that the British Hongkong administration had bypassed Chinese authorities in granting the development rights.

Mainland officials also reiterated that the Land Commission had only approved the disposal of the site and that did not mean China had agreed the contract could straddle 1997.

In response to China's statement, a government spokesman reiterated that the construction and operation of container terminals only involved land grants instead of other contracts or franchises.

''Section VIII of Annex I of the Joint Declaration also makes it quite clear that private container terminals may continue to operate freely after 1997,'' he said.

The legal profession has already come into conflict with China over statements about contracts.

The Bar Association issued a position paper stating that China's views on the CT9 contract was incorrect and inconsistent with the Joint Declaration and the Basic Law, which provided legal protection for contractual rights existing before 1997.

Agreeing with the Bar Association's position, Mr Ip said the project involved granting a domestic contract and in his own view, it had nothing to do with the People's Republic of China and therefore Hongkong should enjoy autonomy.

''The Hongkong Government has granted a contract to somebody to build a container terminal, what has it got to do with foreign affairs, surely it should be within Hongkong's autonomy,'' he said.

Mr Ip said if the contract issue should be interpreted in the way that China now maintained, it would be a slippery road for Hongkong.

''The rule of law must be effected,'' he said.

According to Article 158 of the Basic Law, the power of interpretation of the mini-constitution rests with the Standing Committee of China's National People's Congress.

The courts of the future Special Administrative Region could themselves interpret the Basic Law except provisions ''concerning affairs which are the responsibility of the Central People's Government, or concerning the relationship between the Central Authorities and the SAR''.

''The more power there is in the NPC to interpret the Basic Law, the less power there is in the Hongkong courts to interpret it,'' Mr Ip said.

He conceded that there was uncertainty in the eyes of investors and the financial markets as created by the Chinese Government's statements which, in his view, were legally invalid.

Notwithstanding the lack of public position by the Law Society on China's statements over CT9 and other contracts straddling 1997, Mr Ip denied that the legal profession was split on the issue.

''I don't think you can draw the conclusion that the two branches of the profession are split,'' he said.

''The only thing you have is that the Law Society has not published a statement. There may be all sorts of reasons, I don't know why.

''I can't speak for the Law Society. I have made a statement, the Bar has made a statement. There's no shortage of legal opinion expressed. But whether a particular sector of the legal profession should also be joining in, that's a matter for them.'' Mr Ip also conceded that under the present political climate, it would be difficult for the territory's nine leading professional groups, including the legal, accounting, engineering and architectural sectors, to come up with a consensus view on the contract issue as they did in the past on other subjects.

''As it [the contract issue] would have some political implications, especially under the present political climate - China has quite a lot of pressure on the Patten proposal [on constitutional reforms] - many professional groups would tend to take a more conservative view,'' he said.