In 1995, when Democratic Party chairman Martin Lee Chu-ming first sounded the warning on 'acts of state' in the Basic Law that he repeated in his interview in the Post yesterday, even some legal experts thought he was being unduly alarmist. Few can be of that view today. The reinterpretation by the National People's Congress in the right of abode ruling has dealt a devastating blow to confidence in the rule of law. A second chilling note was sounded in the summary that accompanied the judgment in the flag desecration case, with its emphasis on mainland constitutionality. Much of the optimism that sprang from Hong Kong's unchanged system in the first year of reunification is fading as people see autonomy chipped away by a government more concerned with pleasing Beijing than protecting the SAR's own system. A further challenge to the common law jurisdiction would have disastrous consequences for Hong Kong's international status. In English common law, 'acts of state' is, for the most part, an archaic legal term that students read about in textbooks. It has not been invoked for at least 25 years. Mainland law gives it a far broader reach over acts relating to sovereignty. Therefore, as Mr Lee points out in a hypothetical example, it is not impossible that if Beijing decided to arrest Falun Gong practitioners in Hong Kong, PLA officers garrisoned in the SAR could be ordered to make the arrests. And if local lawyers attempted to have the application for arrest declared invalid, the Department of Justice could claim it was an 'act of state' and beyond its powers. Such a prospect might have been dismissed out of hand this time last year, but the slow attrition in the legal system since June's National People's Congress ruling gives substance to what were once thought to be shadows. At the time of the drafting of the Basic Law, it suited the Legal Department to leave the phrase 'acts of state' undefined. A spokesman said it would only cause 'alarm and despondency' if examined too closely. As a result, we are left with a very unsettling situation, with no obvious means of resolution except to urge the SAR Government to act with the utmost self-restraint in respect of the issue. Hong Kong still has the common law system, where 'acts of state' are restricted to defence and foreign policy, but the question is how strongly the courts could cleave to that interpretation, when their authority has been undermined so drastically.
