Chairperson: Paul Harris Secretary: Patricia Ignarski Director:Law Yuk Kai
Andrew Byrnes Johannes Chan Philip Dykes, Q.C. Ho Hei Wah John Kamm
PY Lo Christine Loh Charles Mok Stephen Ng Phillip Ross
THREATS TO HONG KONG’S RULE OF LAW
AT THE TRANSFER OF SOVEREIGNTY
28 June 1997
At midnight on Monday 30 June Hong Kong ceases to be ruled by the United Kingdom and becomes part of the People’s Republic of China. It moves from being a dependency of the country which gave birth to the common law to being part of a country where less than 20 years ago law itself was regarded as an objectionable bourgeois concept incompatible with the official ideology of the dictatorship of the proletariat.
China has made enormous strides towards the reintroduction of a system of law since 1979, and it has also promised in the Sino-British Joint Declaration that the common-law shall continue to apply in Hong Kong. The commitments entered into in the Joint Declaration have for the most part been made part of China’s domestic law by the Basic Law of the Hong Kong Special Administrative Region which comes into force on the transfer of sovereignty. However whether China will really allow a genuinely independent and impartial legal system to operate in Hong Kong remains the biggest question surrounding the change of sovereignty.
This briefing note deals first with general concerns based on features of the People’s Republic of China and then with specific concerns arising from recent events in Hong Kong.
General concerns (i) Corruption
Corruption is pervasive in the People’s Republic of China. It affects most walks of life and both major and minor matters. It is particularly prevalent in the southern coastal provinces including Guangdong, which adjoins Hong Kong, because of their fast pace of economic growth.
Hong Kong had major problems of corruption until the establishment of the Independent Commission Against Corruption in 1974. In recent years it has become known as one of the most corruption-free environment in Asia, but the problem has not been wholly eradicated. In a celebrated case some 10 years ago the acting Director of Public Prosecutions was found to be taking bribes from organised crime. Organised crime by triad societies remains prevalent.
The fear in Hong Kong is that powerful and corrupt officials and their families from the People’s Republic of China will try to subvert the legal system in Hong Kong in order to increase their wealth and influence and that some of them will try to do so in conjunction with existing triad elements.
(ii) Independence of the judiciary
The independence of the judiciary is a wholly alien concept in the People’s Republic of China. It was not a feature of imperial China and was not properly established under the Nationalist Government. The traditional Communist position is that judges are servants of the state who carry out the state’s orders.
Although the Basic Law provides for an independent judiciary, it is doubtful whether officials in Beijing responsible for Hong Kong affairs fully understand what this means, namely that judges will still be under a duty to decide cases according to law, even where this means deciding them against Beijing’s stated interests. The fear is that Beijing and/or Beijing appointed officials in Hong Kong may try to influence judicial decisions both by direct interference with judges and by trying to take revenge on judges who do take unwelcome decisions by trying to engineer their removal.
The Basic Law makes detailed provisions for the first Legislative Council of the Hong Kong Special Administrative Region. It is to be constituted one third by direct elections with the remainder of the seats filled by indirect elections from so-called functional constituencies and by an electoral college. The system laid down is very similar to that used for the 1995 Legislative Council elections. The Basic Law says nothing about any “Provisional Legislative Council”. A recent challenge to the legality of the provisional legislature based on its usurpation of the function of the Legislative Council of the British Dependent Territory of Hong Kong was very recently dismissed without a full hearing, and cannot now be appealed as the colonial legislative council is about to disappear. However no court has yet been asked to rule on the legality of the Provisional Legislative Council in terms of the Basic Law. Meanwhile this appointed body is purporting to make controversial and unpopular laws for which it has no mandate.
(ii) Controversial new laws on societies and on demonstrations
In April the Chief Executive Designate, Tung Chee Wah, published a consultative document on changes to Hong Kong’s Societies Ordinance and Public Order Ordinance. This contained extreme proposals which would have had the effect of banning any group which accepted funds from “alien” and which had members in the Legislative Council. Aliens were defined as everyone who was not a citizen of the People’s Republic of China. As many Hong Kong residents are not such citizens, the proposal would have had the effect of banning most professional bodies, such as the Bar, or the Law Society, which have members among the Legislative Councillors and receive financial assistance in the form of annual subscriptions from their expatriate members. These proposals generated a storm of protest, increased when it was revealed that Mr. Tung had himself once given a large donation to the British Conservative Party, and were replaced by much less far-reaching proposals in a revised document. However the new laws still provide that all societies must be registered and that registration may be refused, (thereby in effect banning the society in question), on grounds of national security. In addition peaceful demonstrations can also be banned on national security grounds. These controversial measures have been “passed” by the Provisional Legislative Council and the new SAR Government will seek to enforce them from 1 July 1997.
(iii) Removal of the protection of the Bill of Rights
The Standing Committee of the People’s National Congress has power, under the Basic Law to repeal Hong Kong laws which conflict with the Basic Law. It has used this power to repeal the parts of Hong Kong’s Bill of Rights Ordinance which provided that other laws should be interpreted so as to be in conformity with the Bill of Rights, and that prior laws which could not be so interpreted stood repealed. It is unclear what the effect of this decision is on the law, as that part of the Bill of Rights Ordinance simply gave statutory form to a common-law rule which already existed and still exists now. However it seems likely that the intention behind the decision by the Standing Committee was to emasculate the Bill of Rights, and to prevent Bill of Rights challenges to draconian new laws curbing civil liberties. It is therefore a very worrying indicator for the future. Even more worrying is the fact that the decision was based on a recommendation by a China appointed body with many Hong Kong members - the legal sub-group of the Preliminary Working Committee - and that the Hong Kong members of the Committee were content to remove their own human rights protection. It appears that members of this legal sub-group will be appointed to the new Basic Law Committee which will advise the Chinese Government on the operation of the Basic Law.
(iv) Article 23 of the Basic Law
Article 23 of the Basic Law provides that the Legislative Council of the Hong Kong Special Administrative Region will pass laws against treason, secession, sedition, subversion and theft of state secrets. The last Legislative Council of the British Dependent Territory of Hong Kong has just passed laws on treason and sedition and on official secrets. These laws were logical “localisation” measures as references to treason against the Queen of the United Kingdom in previous laws had become archaic, and Hong Kong did not have its own official secrets act. However there is no pressing need for such laws (the last sedition trial in Hong Kong was in 1952, and the last treason trial in 1945) and they are open to abuse. The reason they were passed was to try to make provision for a law that would meet the requirements of Article 23, and so avoid more extreme legislation on the same subjects.
Article 23 was finalised after the Tien An Men Square massacre, when the atmosphere had changed drastically for the worse from the earlier period of preparation of the Basic Law. It is designed to stop Hong Kong being used as a base for opposition to the Communist regime in Beijing. “Secession” and “subversion” are not offences known to the common law. However they are well-known in China. “Subversion” in reality covers opposition to the Communist regime. It includes what in Hong Kong or in democratic countries is regarded as legitimate political opposition. “Secession” as an offence would appear to criminalise legitimate expressions of support for independence movements. Such a law in Britain or Canada would outlaw the Scottish National Party and the Parti Quebecois. It seems this is exactly what China wants to do. The Chinese Foreign Minister, Qian Qi Chen, said last year that after the transfer of sovereignty Hong Kong people would not be allowed to advocate independence for Tibet or Taiwan. If Mr. Qian’s statement is put into effect this will be a gross and intolerable breach of the right to free speech which is set out in the Basic Law and in Hong Kong’s Bill of Rights.
Mr. Tung Chee Wah has said that the recent laws passed by the outgoing Legislative Council on treason, sedition and theft of state secrets are not sufficient to meet the requirements of Article 23 and that legislation will be passed on secession and subversion.
Mr. Tung appears to be determined at all cost to prevent anything happening in Hong Kong which could give offence to the Chinese leadership. He is proposing to convene the provisional legislature in the early hours of the morning of 1 July to pass laws to ban a demonstration to start at midnight - while the Chinese leadership are in Hong Kong for the transfer of sovereignty ceremony. This is retrospective criminal legislation, which is outlawed in every civilised society, outlawed in Hong Kong by the Bill of Rights (Article 12) and will additionally be outlawed after midnight on 1 July by Article 39 of the Basic Law, which states that the International Covenant on Civil and Political Rights will continue to apply in Hong Kong (Article 15 of the ICCPR and Article 12 of the Hong Kong Bill of Rights are in identical terms).
16 This example and the others quoted above appear to show that Mr. Tung - an engineer by profession - has little understanding of legal principles and is poorly advised.
Shortcomings of Hong Kong judiciary 17. Some Hong Kong judges have in the past shown themselves to be very reluctant to find against the Government in cases with political overtones. They have not demonstrated as much independence of view as might have been expected in a common law system, possibly reflecting Hong Kong's colonial culture. The extent to which the judges will be able or willing to uphold the law if under Government pressure to bend to the Government's wishes remains highly uncertain.
Position of Chief Justice and Judges of the Court of Final Appeal 18. The Basic Law requires the appointment of the Chief Justice and the judges of Hong Kong's new Court of Final Appeal to be endorsed by the first Legislative Council of the Hong Kong Special Administrative Region. The Chief Executive is now planning to substitute an endorsement by the Provisional Legislative Council. If the Provisional Legislative Council is illegal its endorsement cannot be an adequate substitute. It then becomes unclear whether the judges in question have been validly appointed. Whatever the ultimate outcome of this controversy it is likely to create confusion and diminish the authority of the courts.
Lack of powers of final adjudication 19. The Joint Declaration promised Hong Kong courts the power of final adjudication. However this promise was broken in the Basic Law, which provides (Article 158) that that in the case of affairs which are the responsibility of the Central People's Government or which concern the relationship between the Central authorities and Region, the courts shall, before making a non-appealable final judgment (i.e. a judgment of the Court of Final Appeal ) seek an interpretation from the Standing Committee of the National People’s Congress in Beijing.
20. The Hong Kong Legislative Council in 1990 passed a resolution condemning this provision and calling for that part of the Basic Law to be amended. However in 1995 the Hong Kong Government reached agreement with China on the arrangements for the Court of Final Appeal which included incorporating into a law on the court of final appeal the provisions of Article 158. The provisions will be in effect from 1 July, and mean that in any matter where the SAR Government or the Central People's Government take the view that the case affects the central authorities the final decision will be taken not by judges but by the political leadership of China who form the membership of the Standing Committee of the National People's Congress.
Over-hasty change of court language from English to Chinese 22. The language of the higher courts in Hong Kong is English and all lawyers, whether Chinese or expatriate, expect to speak English in court. After long delays in introducing the option of hearing cases in Chinese, there is now a lobby among some pro-Beijing legal figures to convert the whole operation of the courts into Chinese in the near future. This world result in the departure of most judges and senior lawyers. Gradual progress to wider use of Chinese is logical. The risk is that change may be forced at a pace which deprives the legal system of its senior personnel causing rapid collapse.
Availability of legal aid 23. At present legal aid is generally available in Hong Kong. However there have been difficulties litigants for challenging controversial aspects of Government action in obtaining legal aid. Unlike in the United Kingdom legal aid in Hong Kong is administered by a Government Department, and pressure for it to be placed under an independent body has been resisted. It is feared that in future legal aid will simply be refused where the Government wants to stop a case from coming to court.
Conclusion 24. The pressures on the rule of law immediately after the transfer of sovereignty will be immense. The rule of law is a major obstacle to China's traditional method of governing. It has some staunch defenders in Hong Kong among the judiciary, the legal profession, and the civil service. However the prospects for its survival are doubtful, as it is undermined both by the defective constitutional arrangements which have been put in place, and by the attitudes towards legality shown by key members of the incoming administration.