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Legislators alarmed at State Council think-tank study

Legislators yesterday expressed concern about a State Council think-tank's study into how Hong Kong courts handle Basic Law cases, saying it highlighted the mainland's lack of understanding about the city's  legal system.

Democratic Party lawmaker James To Kun-sun said the study appeared to put political pressure on the courts by telling them, 'I am watching you'.

But the study's lead  researcher, visiting fellow at Tsinghua University's school of law   Simon Lee Hoey, said the statistical analysis commissioned by the Hong Kong and Macau Affairs Research Institute was purely 'academic driven'.

'I understand the sensitivity involved, but there is nothing political behind the study,' he said. 'This research is part of a series of social studies about the legal culture in Hong Kong.'

The study found that higher courts had ruled more often against the government in cases involving the mini-constitution than lower ones.

Mr Lee, also a member of the city  government's Central Policy Unit, said the study concluded the courts were important political players supported by legal reasoning.

He said the administration and the legislature had been unable to take a lead in setting social norms in recent years because of their low public support. 'The judiciary filled the gap. The courts  ... created new norms and searched for new legal, political and social consensus,' he said.

But Civic Party legislator and barrister Margaret Ng Ngoi-yee said the researchers appeared to be confused about 'the political role of courts, especially the Court of Final Appeal'.

'They are looking at things in a strange sort of way ... in our constitutional arrangement, courts do not have a political role,' she said. 'Each case depends on its legal arguments. They think the court just decides cases, but the court interprets the law and is bound by principles. They have to adhere closely to legal reasoning, and cannot and should not make up for what is lacking in the law.'

Ms Ng said that while the analysis was 'conscientious', it was done without a full understanding of the local  system.

'I think this has to be approached with a great deal of caution and they have to understand the Hong Kong system a great deal more before they can draw any conclusions as to policy.'

Mr To said generalising about  courts' attitude towards the government in cases was 'like looking at the trend of Mark Six numbers or betting on the World Cup'.

'The law is the law - if according to the law the government is wrong, then of course it is the duty of the court to declare that the government is wrong,' he said. 'The mainland ... must feel it is strange for the final court to rule against the government in more than 50 per cent of cases.

'This kind of study by the State Council is negative and overtly puts pressure on the court.'



Claim of political pressure on courts