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Cliff Buddle

The government's decision to give the new chief executive a two-year term cries out to be challenged in the courts.

Our judges are supposed to ensure the government sticks to the Basic Law. But they can intervene only if someone takes the case to court. There should be no shortage of takers. The two-year term appears to be a clear breach of the Basic Law's provisions, which provide for only a five-year period. So it should be case of 'game on'.

But there is a distinct lack of enthusiasm for a court challenge. The Democrats are yet to make up their mind whether to bring one. And prominent legal experts have warned that a challenge could result in serious damage to our independent judiciary.

This is a worrying situation. It tells us a lot about the way in which our legal system has changed since the handover.

Now, it is considered better to let the government get away with breaking the Basic Law rather than risk exposing our judges to the humiliation of having their judgment overturned by Beijing.

This sword of Damocles  has been hanging over the heads of the court ever since the right-of-abode crisis in 1999. This was when the Court of Final Appeal ruled against the government in a landmark case - only to see the judgment overruled by the National People's Congress Standing Committee.

It was a powerful blow to the status of our judiciary. The government, which requested the reinterpretation, had armed itself with a new weapon. It has refused to limit the circumstances in which it will be used. Secretary for Justice Elsie Leung Oi-sie said in 2001 that a reinterpretation would only be sought 'to resolve a problem we could not resolve'.

Such a problem might well arise over the election of the next chief executive, set for July 10. The government could find itself in a similar situation to the Link Reit case, with the poll having to be postponed because of ongoing legal proceedings.

There is also a danger that the courts might rule in favour of a five-year term. This would be embarrassing for acting Chief Executive Donald Tsang Yam-kuen.

So we should not be surprised that the government has picked up the 'sword' and started waving it about. Secretary for Constitutional Affairs Stephen Lam Sui-lung has already urged the courts to take the urgency and importance of the election into account when considering any challenge.

Noting that a legal action could take months, he said: 'I believe the courts will find room to consider the case as soon as possible.'

This suggests the government will seek to rush any legal action through the courts as quickly as possible. This is what it did with the Link Reit case - until the Court of Final Appeal applied the brakes.

Mr Lam has clearly not taken heed of the warning delivered by the chief justice at the opening of the new legal year. Andrew Li Kwok-nang said judges should not be deflected by considerations of what might be politically expedient when ruling on the law.

Mr Lam also pointed out that an interpretation from Beijing might be necessary. The government, he said, would act 'according to the circumstances as they unfold'.

Comments such as these will put additional pressure on the courts, should a legal challenge be brought. The message seems to be that the judges should do the government's bidding or face action from Beijing.

The courts will be left in an impossible position. A ruling in favour of a five-year term would risk a reinterpretation. But a decision which supports two years could give the impression the judiciary had caved in to political pressure.

One way out might be for the Court of Final Appeal to refer the matter to Beijing itself. But this process could take a long time - and rulings would still have to be made in the lower courts.

The two-year decision deserves to be challenged. But this is likely to damage the judiciary's reputation. The reality of the 'new constitutional order' is that the courts can be undermined merely by asking them to do their job.

Cliff Buddle is a senior writer for the Post



Basic Law breach puts our courts at risk