The turncoat shuffle on the legal floor

IT IS alarming how short people's memories can be, worrying how a U-turn over an issue so crucial to Hong Kong's future as the Court of Final Appeal can pass by with so little controversy.

Yet that is precisely what happened last week, when the Council of the Law Society abruptly reversed the body's three-year-long opposition to the Sino-British 4+1 agreement, and voted to back the Hong Kong Government's bill to establish the Court of Final Appeal on this basis.

The accord, reached in secret by the Joint Liaison Group in 1991, had, until now, been unanimously opposed by leaders of the local legal profession on the grounds that, by limiting the number of foreign judges who can sit on the future court to no more than one, it breaches both the Basic Law and Joint Declaration. As recently as November 10, the Law Society had re-affirmed its opposition to the accord.

That is why Democratic Party chairman Martin Lee Chu-ming was so furious about the U-turn last week, alleging it will send a message to the world that Hong Kong lawyers care little about the rule of law, while a small group of like-minded solicitors are still fighting to try to reverse the council's decision - by forcing an extraordinary general meeting on the issue.

But more notable was the lack of outrage from anyone else. Even the leader of the Legislative Council's 1991 revolt against the 4+1 accord, legal representative Simon Ip Sik-on, had nothing to say about the U-turn - other than that he would clarify his own stance shortly.

Mr Ip is one of many legislators who is almost certain to use last week's decision as an excuse to follow suit in abandoning their previous opposition to the 4+1 agreement.

Even if the forthcoming extraordinary general meeting deprives them of that excuse, by reinstating the Law Society's opposition to the accord, few now doubt that - on present trends - the Court of Final Appeal bill will be passed in early 1995, by the same Legco that rejected it, in principle, three years ago, by the overwhelming margin of 34-11.

In itself, the turncoats' argument is a perfectly respectable one: namely that it is better to have a slightly imperfect court set-up, on the basis of the 4+1 accord, before 1997, rather than risk Beijing establishing a much worse one later on.

That is what the Hong Kong Government has long been saying, and it is an argument which has some merit: although the practical benefits of having the court in place before the handover have to be set against the damage that may be done to the credibility of the Joint Declaration and Basic Law by going ahead with an agreement that many lawyers believe to be in violation of them.

What is not respectable is for those who decide to do such a U-turn, on the grounds of expediency, to try to hide their shift of stance.

That is what the Law Society tried to do last week, with president Roderick Woo Bun feebly seeking to justify switching sides, by saying he had received fresh arguments favouring the 1991 deal in a submission from the British Government.

According to the Bar Association, which, so far, is still standing firm in its opposition to the 4+1 accord, this submission - which has not been made public - contains nothing new.

But it still allowed Mr Woo to claim it was now clear the Court of Final Appeal agreement was 'only a limitation, but not a violation, to part of the Basic Law'.

Apparently he had forgotten his society's unequivocal statement, in 1991, that the agreement runs 'directly contrary to the spirit and letter of the Joint Declaration and the Basic Law'.

If and when Mr Ip publicly announces his decision to follow suit, he will be well advised to be more straight-forward in openly admitting to a U-turn. That also applies to the other councillors who are likely to switch sides.

Liberal Party members Selina Chow Liang Shuk-yee, Ronald Arculli, Edward Ho Sing-tin, Lau Wah-sum, Miriam Lau Kin-yee, and Lam Kui-chun all voted against the principle of the 4+1 accord in 1991.

So too did independents Eric Li Ka-cheung, Samuel Wong Ping-wai, Jimmy McGregor and Timothy Ha Wing-ho.

Their names are spelled out in the hope it may make it that bit more difficult for any of them to support the bill to establish the court, when it comes to a vote next year, without also publicly justifying why they have changed their minds on such a crucial issue - however many votes this may lose them.

Ironically, these potential turncoats' only hope of avoiding such an embarrassing spectacle may lie with Beijing continuing to cast doubt on the prospects for a through-train for the Court of Final Appeal, and maintaining its present refusal to hold expert talks to discuss the issue.

That will render all the present arguments irrelevant since, if there is no chance of the new court straddling the handover, even the Government will have difficulty arguing that there is any point setting it up before 1997.

And that will avoid some hard choices for those who may otherwise have followed in the Law Society's footsteps, and must now be hoping that they will be saved from humiliation by Beijing.