Handover worries over habeas corpus

As the British rule over Hong Kong approaches its end, doubt remains over the survival of a fundamental human right -- that of seeking a writ of habeas corpus as a remedy for wrongful or arbitrary imprisonment or detention. In this seventh of his series on Hong Kong as it reverts to China, our Asia correspondent Harvey Stockwin tells how Chinese abrogation of the right has been followed by laggardly British action to restore it.

HONG KONG (JP): British rule over Hong Kong has less than a week to go, but as the final week began it was still uncertain whether the absolutely fundamental right of habeas corpus would be in place when China regains sovereignty over Hong Kong at midnight on June 30.

Sources in Hong Kong's first and last fully-elected Legislative Council, which is due to cease operating later this week, say that a new Supreme Court (Amendment) Ordinance (SCAO) will be passed this week to rectify this omission at the last minute. The Ordinance will "localize" the right to seek a writ of habeas corpus, hopefully in such a way that the legal process of habeas corpus will survive the handover.

While the long-delayed passage of the ordinance, if and when it happens, will reduce worries, it will not end them. The fact that such an important matter has been left to the very last moment in fact arouses other worries lest the British have not been as meticulous in preparing for the handover as they should have been.

Far away in Denver, Colorado, the Group of Eight summit of industrialized nations last weekend called upon China to fully honor its pledges to uphold Hong Kong's freedoms. The delay in action over habeas corpus means that G-8 should have also directed some of the same criticism at Britain.

However, China is also to blame for doubts arising over the future of habeas corpus in Hong Kong. It was action by China and its ultra-loyal supporters in Hong Kong which eliminated the right in the first place. Early this year, the Chinese side -- and ultimately the National People's Congress (NPC) -- endorsed a resolution that 14 Hong Kong laws be scrapped from July 1, and that ten sections of existing laws, including part of the Bill of Rights, be substantially amended.

Among the 14 laws to be scrapped was the Application of English Law Ordinance (AELO). This move could have been anticipated. The Hong Kong Bar Association, often critical of both British and Chinese actions regarding the rule of law, itself noted there were aspects of AELO which would probably be unjustifiable after the change of sovereignty on June 30. But the NPC threw the baby out with the bathwater. The "babies" so thrown included ten sections of the English Habeas Corpus Act of 1679 and the whole of the Habeas Corpus Act of 1816. These were the English Acts through which habeas corpus became a right for the people of Hong Kong.

From the moment the Sino-British Joint Declaration was signed in 1984, it was known that the promised retention of the rule of law, and the Anglo-Saxon common law, in Hong Kong, after 1997, would require the localization of some laws in the Hong Kong statute book. Yet it was only when China suddenly abrogated AELO that action was taken regarding habeas corpus, and the new SCAO was belatedly produced.

But SCAO, as originally drafted, had one clear flaw -- a fundamental right was hedged with an authoritarian power: the SCAO would have allowed a future Hong Kong government to send or deport a person out of the colony while a habeas corpus writ was being sought or heard -- thus effectively negating the whole point of habeas corpus.

This amazing flaw has to be set against the fact that Hong Kong is a city largely composed of refugees from China and one deep-seated fear is that China may try to use its sovereign power in future to settle old scores with those who once fled from its jurisdiction. Given the reality of these fears, the right to a writ of habeas corpus should not be watered down, nor subject to someone being whisked over the border into China.

Naturally this aspect of the SCAO came under fire in the fully-elected Legco. The Jakarta Post understands that the Hong Kong government is now willing to alter the wording of SCAO, to meet these objections but whether these changes will be sufficient to put fears to rest remains to be seen.

Even if the amendments are satisfactory, and SCAO is passed this week in the final days of the last Legco session, this does not end anxiety over the future of this fundamental right.

First, there is no guarantee that China's NPC will not treat the new Supreme Court (Amendment) Ordinance in the same way as it nullified the AELO in the first place.

Second, informed legal sources point out that other laws which China has abrogated could contain other aspects of law which have yet to be localized. "We know about habeas corpus" says one barrister,"but I am afraid other important rights or laws may be in need of localization -- and maybe the government, having been too lackadaisical, has failed to take action on these matters."

This noteworthy failure of the Hong Kong government over habeas corpus is widely attributed to the outgoing Attorney- General Jeremy Mathews whose lackluster performance in that office has been widely criticized. But the last British Governor Chris Patten, currently heavily engaged in a round of farewell speeches and visits, would appear also responsible for failing to carefully preserve what ought to be an essential aspect of Hong Kong's legal heritage.

But beyond the lack of a proper sense of urgency displayed by Mathews and Patten on this critical issue, Hong Kong itself comes out of the controversy in a poor light.

The press has simply paid virtually no attention to the crucial issue. The English-language South China Morning Post did notice the flaw early on, but after one desultory editorial, left the matter alone.

While some of the elected Legco politicians have spoken out against the way in which SCAO was drafted, they have shown no talent for taking the issue to the people in order to get some action.

Those who spoke out are among those who will be dropped from the Provisional Legislative Council which China has appointed to take Legco's place. But broadly the Democratic Party majority in Legco has been too busy worrying about its overall survival in future, to express much concern about the survival of this aspect of the British legacy. The various legal faculties in Hong Kong universities have also been silent, possibly because two outspoken academics are not having their contracts renewed..

The right to a writ of habeas corpus may be localized in the nick of time later this week. But the incident demonstrates a worrying truth: Hong Kong's political and intellectual foundations are a very weak base of support for its economic sophistication and success.