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SCMP Reporter

Cheung Lai-wah personified the positive impact of the Basic Law on people's lives when the nine-year-old leapt for joy outside the Court of Final Appeal after winning the right of abode last year.

 Four months later, 600 lawyers, dressed in black, solemnly marched past the same spot, protesting against Government plans to have the effect of that ruling overturned in Beijing.

 These enduring images illustrate the importance of the 'mini-constitution' in protecting human rights and the deep-seated problems which have arisen when putting it into practice.

 The struggle by mainland-born children to join their families in Hong Kong has been the highest profile example of these constitutional growing pains.

 But as the the Basic Law approaches the 10th anniversary of its promulgation on April 4, 1990, there are much broader issues to be addressed, which will be fundamental in shaping Hong Kong's future.

 Robert Allcock, the acting Solicitor-General, was at the forefront of the Government's defence of its policy during the turbulent events of last year, which saw a constitutional crisis.

 'There is a tendency to look at problem areas and to totally ignore the big success story,' he said. 'When one looks at the big picture there can be no doubt that the Basic Law has worked extremely well.'  The number of judicial review cases, the area in which the Basic Law is most likely to be used, is rising. There were 87 such applications in 1998, 132 in 1999, and 116 in the first 10 weeks of this year. Many of these have involved the right of abode but the Basic Law has been used in a wide variety of other ways.

 There have been rulings on the powers of the Chief Executive, the disqualification of legislators, employment conditions for civil servants, the validity of international agreements, grants to non-government organisations, the rateable value of land and the freedom of expression.

 Social workers, prisoners, property developers, flag-desecrating protesters, a taxi-driver accused of being rude to a passenger, and a disgraced legislator are among those who have been involved.

 Mr Allcock said this proved that a major concern expressed before the handover was unfounded. 'People have now forgotten that there were respected academics and Chinese scholars who were predicting that the Basic Law would not be an enforceable legal document. One thing established very clearly after reunification is that the Basic Law is enforceable in the courts.'  But other concerns raised at the promulgation of the Basic Law have not gone away. Solicitor William Clarke, who represented migrants in the right of abode battle, said the failure of the Basic Law to implement democracy, as promised in the Sino-British Joint Declaration, was a major blow.

 'There are some kinds of decisions which are rather political in nature and should be left to the legislature,' he said. 'When those decisions are taken by the elected representatives of the people and implemented by the executive responsible to that elected body, then you have a measure of control over what happened. But we didn't get that.

 'My disappointment . . . is that the Basic Law, from the very outset 10 years ago, did not do what we expected or hoped in the Joint Declaration.

 'In the absence of that measure of political control, it must be the case that the courts have an even more important role than otherwise.'  Gladys Li, SC, who found herself unexpectedly thrust into Hong Kong's first constitutional court battle, believes the judges have been left to sort out problems with the Basic Law which should have been resolved before the handover. Within a month of the transition, the Court of Appeal faced claims that the common law had not survived.

 The so-called 'David Ma case' also raised the important question of whether the provisional legislature was valid. The body is not mentioned in the Basic Law but replaced the pre-handover Legco in the absence of a political through-train.

 When a refusal to grant legal aid threatened to leave the Government's views on the issue unopposed, Ms Li emerged from the public gallery to take up the challenge. 'I have to say I felt singularly ill-prepared for it,' she said. 'I just had not done any of the work one would normally do in preparing to argue a major constitutional point like that.'  She said those who wished to see the validity of the provisional legislature challenged in court did not regard the case as an ideal one in which to put the arguments forward.

 'We were very reluctant to be dragged into the thing, but we felt rather than let the whole thing go on default, we had to put up some kind of an argument. That is what we did. I still feel we didn't argue, and really did not have the opportunity to argue, everything we could have done.'  The judges ruled the provisional legislature valid. They also, controversially, held that acts of the National People's Congress (NPC) could not be challenged in Hong Kong's courts, a view contradicted by the Court of Final Appeal last year.

 Ms Li said key problems were identified 10 years ago, in particular the clash between the two legal systems which was to cause the constitutional crisis. But they had not been resolved by the handover.

 'I think the political row between the two governments made it impossible to look at these problems and to find a way of dealing with them, rather than having them thrust into the lap of the court. It is unfair in a sense to ask the courts to deal with these problems which are very political.'  Mr Justice Brian Keith was the first judge to deal with the right of abode cases. 'The fact that an issue raises a political question does not mean it does not at the same time raise a legal question which can properly be decided by a legally qualified judge,' he said.

 Finding the meaning of the Basic Law required judges to take a new approach, he said. 'Because the Basic Law was drafted in wide and aspirational language, it does not define the terms which it uses and it does not go into details. The consequence of that is that judges have to apply different interpretative techniques.'  The new approach was set out by the Court of Final Appeal in its right of abode ruling in January last year and places greater emphasis on the purpose of the provision in question, rather than the words used.

 'For judges in Hong Kong, we are schooled in the common law,' Mr Justice Keith said. 'This new interpretative technique involves a different mindset. That, in short, is the impact.'   He said he did not believe the NPC Standing Committee's reinterpretation of the Basic Law had affected this approach, or that it had damaged judicial independence. 'I have come across no judge who has felt an inability to address questions raised by the Basic Law in a focused and legal way. I have not come across any judge who has felt influenced by extraneous considerations, whether those considerations are the political contents of the issue or others.'  University of Hong Kong law professor Raymond Wacks said he hoped for more from the courts in their future handling of the Basic Law. 'What I am looking for, essentially, is a more potent and more specific recognition of the role of the common law in protecting rights,' he said. 'There is evidence that judges in England are giving vent to a very powerful theoretical framework for the protection of rights, and if any jurisdiction needs it, it is ours.'  Professor Wacks added: 'We need the Court of Final Appeal to exercise leadership and guidance to all the courts in Hong Kong. It is not just the judgment, it is the reasoning and the basis on which the judgment is reached.

 'What I am looking for is a statement that law consists not just of rules but also of moral principles and that these moral principles in the common law are dedicated, over a very long period of time, to the protection of individual rights.'  But he said the courts had been left with little opportunity to venerate the common law, and were put in a difficult position by the Government's request for Beijing to re-interpret the Basic Law.

 That request was the most obvious departure from what had been expected at the time the Basic Law was promulgated, according to Bar Association chairman Ronny Tong, SC.

 'I think everyone had assumed, some would say wrongly, that having fought for so long there would be total judicial autonomy in respect of matters falling within the ambit of the local autonomy of the SAR,' he said. 'Unfortunately, that appears to have been washed away.'  He said it was essential to restrict the circumstances in which the Government asked the NPC Standing Committee to interpret the Basic Law.

 This might require an amendment to the Basic Law itself, to ensure referrals were never again made in circumstances where the issues had been considered by the courts, he said.

 Many legal experts believe it is too early to judge the success of the Basic Law.

 Paul Harris, a barrister involved in the David Ma case and a spokesman for Hong Kong Human Rights Monitor, said: 'I think it would be a very foolish mistake to assume that because there are various guarantees of rights in the Basic Law, that those are safe and not under threat. I keep an open mind as to whether the Basic Law will prove to be an effective guarantee.'  The role of the courts would be important, he said. 'We have yet to see whether the Court of Final Appeal will prove itself to be a powerful independent-minded court on the lines of the US Supreme Court or whether it will just become the sort of court that never finds against the Government in an important case.'  Cheung Lai-wah has been able to keep her right of abode because the NPC Standing Committee said parties to the proceedings in question would not be affected by its reinterpretation.

 More than 5,500 others are pursuing a new landmark action, claiming they should be treated the same.

 It remains to be seen how often her leap for joy will be repeated by others who are using the Basic Law to establish their rights.



A leap into the unknown