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South China Morning Post, June 14, 1995
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Courting disaster
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By Martin Lee
The Court of Final Appeal agreement will be debated in Legco today. Here Martin with last Friday's Sino-British deal on our Court of Final Appeal (CFA), the sun has set in shame on the British Empire in Hong Kong.
Today Governor Chris Patten tables the CFA bill to Legco. Though Mr. Patten and the British Government claim this deal ¡§heralds a new era of co-operation,¡¨ demonstrating that Britain and China can reach agreement and work together, it in fact proves only that it is easy to reach agreements with China if you give Beijing what it wants.
The key issue for Hong Kong people is not the so-called straddling of the CFA legislation past 1997, but whether we have evidence that the Chinese Government understands and respects the meaning of the rule of law in Hong Kong. There is no such evidence, and hence, no grounds for confidence in the future. Contrary to Mr. Patten¡¦s claim that he has ended uncertainty over the rule of law in Hong Kong, uncertainty has in fact been increased because the CFA will not be set up until July 1, 1997, after the transfer of sovereignty.
First, it must be folly to assume that if China did not honour its 1991 agreement to permit a CFA before 1997, it would honour another agreement. Or, as The Times put it: another deal on the CFA ¡§is a surrender both to blackmail and to China¡¦s assertion of its right to renege on any agreement that no longer suits it¡¨.
Indeed, the British Government¡¦s entire argument for the original 1991 deal on the CFA was that in limiting the discretion of the Court to invite overseas judges and in setting up our highest court in violation of the Joint Declaration, our CFA would at least be up and functioning before the transfer of sovereignty to China. Mr. Patten¡¦s principal rationale for a less good CFA established before 1997 has been that it would be better than what China would do if left to set it up alone.
Now China is left to do just that, with, as clause five of the agreement says, consultation from the British Government ¡§on the preparation for the establishment of the Court¡K¡¨. But because China is left to set it up, Britain can deny any culpability for a CFA which does not replace the Privy Council, but rather make a joke of it.
Second, the Sino-British agreement on the CFA adopts all the proposals made by the Preliminary Working Committee (PWC). This legitimises a body condemned by Britain and set up as Beijing¡¦s shadow government purely to punish Mr. Patten for his modest electoral reforms. The PWC is not exactly popular with Hong Kong people either: a January 1995 South China Morning Post survey found 70 per cent of Hong Kong people do not trust the PWC to act in Hong Kong¡¦s best interests. Now Britain has conferred on the PWC the credibility it was never been able to establish on its own.
Britain has accepted the PWC¡¦s proposals, including the previously rejected control of selection of the CFA¡¦s Chief Justice and the explicit acceptance of China¡¦s faulty definition of acts of state. Accepting the PWC¡¦s proposals destroys the role of the properly elected Legislative Council and makes a mockery of the efforts Mr. Patten and Britain put into his electoral reform package. If the PWC is now running Hong Kong, its people should be told.
Third, with the aid of Britain, the Chinese Government has deliberately misinterpreted the common law meaning of acts of state. The Chinese text of the agreement states that the CFA shall have ¡§no jurisdiction over acts of state, that is, defence and foreign affairs, etcetera.¡¨ In the common law, ¡§acts of state¡¨ refer only to things such as declaring war or making treaties ¡V and the core principle is that it may never be used by the sovereign against its own citizens.
Even Britain aggress that this arrangement opens the door to all politically ¡§sensitive¡¨ cases being deemed acts of state by the Beijing central government. The principle of acts of state is so infrequently invoked in Hong Kong that the last case dealing with acts of state was heard in 1952. As the Court will not be set up before 1997, it is likely that China will interpret the jurisdiction over acts of state in such a way that Hong Kong people will never be able to challenge the government. This rips the rule of law into shreds, since the entire basis for the rule of law is that the Government is subject to the law just as ordinary citizens are. The SAR Government overnight gains a power it never had even under the colonial Government: the power to act with impunity.
Under common law it is an act of state to annex foreign territory in a state of war. But it would not be an act of state for a government to expropriate land that belongs to its citizens or what the courts term ¡§friendly aliens¡¨. Thus, the defence of acts of state could never properly be used, for instance, to let the People¡¦s Liberation Amy expropriate property owned by Hong Kong people without compensation. Moreover, since the distinction between politics and business is hazy, a local or international investor could find himself on the wrong side of China¡¦s definition of ¡§acts of state¡¨ as easily as I could. The ¡§etcetera¡¨ in the Chinese text on acts of state is left deliberately vague, so that if you are, say, owed money by a state-owned company or if you want to sue the People¡¦s Bank of China, you could be out of luck.
Mr. Patten has said that the acts of state definition is ¡§a small hole¡¨ in the common law ¡V but can anyone ever be certain that he will not fall into the hole? Indeed, Britain cannot even tell us what China¡¦s definition of acts of state may or may not include. A ¡§hole¡¨ in our common law today could be a crater tomorrow. If you are in court in Hong Kong after 1997, the bad news is that you will never now whether your opponent has the clout to pull strings in Beijing so that your case will be thrown out.
The key point is that if our rule of law is compromised in any way, it is the thin end of a wedge. You don¡¦t need to be a lawyer to know that the beauty of the common law system is certainty. That clearly is gone if we have ¡§a common law with Chinese characteristics¡¨. This is why the Democratic Party will amend the CFA Bill represented to us today to bring it in line with the Joint Declaration and the Basic Law.
We will restore the CFA¡¦s flexibility to invite judges from overseas common law jurisdictions to sit on the court, define acts of state in accordance with the common law, and set up our highest court before 1997, so that the CFA is up, running and credible before 1997. This decision must be made by the people who will be here to live with and litigate under the consequences of their actions. The rule of law ¡V and our future ¡V is not Britain¡¦s to give away.
Perhaps the most worrying question is why China is forcing Britain to give ground now on the rule of law. If we are really to have ¡§one country, two systems,¡¨ why is it that China is insisting on control of our legal system now, so far in advance of 1997?
One thing, however, is clear: with this agreement on the CFA, Mr. Patten has now openly admitted what his role from here on out will be: to do Beijing¡¦s dirty work, implementing the decisions made by China and surrogates here in Hong Kong.
Last year the Governor made point of saying he wanted to get out the driver¡¦s seat and let Hong Kong people to do the driving. Mr. Patten still be sitting in the driver¡¦s seat, it must now be clear to all that Beijing turning the steering wheel.
At this point, Hong Kong people don¡¦t know which is greater to our rule of law and our freedoms: Chinese sovereignty 1997 ¡V or British collaboration.
The colonial sun has certainly in shame over the rule of law in Hong Kong. But it is we Hong Kong people who will have to live on in the distress.
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