Legal tangle still a problem for HK as handover nears

Hong Kong has thrived in the past on the numerous uncertainties which have come its way -- but will it continue to do so in the future? The Jakarta Post Asia correspondent Harvey Stockwin analyses some of the difficulties as he continues with the fourth in a series of articles on Hong Kong's transition from British to Chinese sovereignty.

HONG KONG (JP): By any rational calculation, the countdown to Hong Kong's reversion to China at midnight on June 30, 1997 is not going well.

There is a little more than a month to go before the deadline. Many of the negative trends in the situation (initially analyzed in two articles in the Jakarta Post on May 4, 1997) have been, or are being, exacerbated. There are numerous critical aspects of the transfer of sovereignty, resolution of which looks like being left to the last minute. To give only one dramatic example, the continuation of an absolutely fundamental right, crucial to the promised survival of the rule of law in Hong Kong, is even in doubt.

So the already high degree of uncertainty in the situation is being increased. The fact that insecurity has in the past often seemed to work in Hong Kong's favor does not mean that it will always do so.

First and foremost, China has gone ahead, as it has long said it would, and "elected" a Provisional Legislature (PL) which will replace the current, and the first fully-elected, Legislative Council (Legco) at midnight on June 30. The reason for this change is, in China's view, Britain's failure to secure China's agreement to the small electoral changes ushered in by Governor Christopher Patten, after protracted Sino-British negotiations proved fruitless.

More accurately, after the events of 1989, culminating in the Beijing Massacre, China's communist leaders saw any slight democratic change as a threat to their authority, whereas Patten had to grapple with real political pressure for change within Hong Kong. This clash of perspectives made Sino-British agreement impossible. As they so clearly demonstrated in their reaction to the 1989 demonstrations within China, the Chinese communists do not even recognize pressure for political change, let alone grapple with it.

Late in 1996, some residual hope remained that China would relax, see the legal tangle in which it was entwining itself, and let the elected Legco continue after the transfer of sovereignty.

There is no constitutional provision for a PL in either the Joint Declaration or the Basic Law (BL), the constitution China drew up for its future Hong Kong Special Administrative Region (HKSAR). Whether because it was carried away by its abusive anti- Patten rhetoric, or, more likely, because the Chinese Communist Party (CCP) was too dedicated to opposing any political reform, China still went ahead, late in 1996, and formed its own PL with which to replace Legco. China "selected" the 400 or so Hong Kong persons who then proceeded to "elect" the PL. Several pro-China personalities, roundly defeated in the 1995 polls, were returned, by this process, to sit in the PL.

Just over half the members of Legco are also members of the PL, so there will be an element of continuity. But the PL, as China no doubt wanted, has been formed without the Democratic Party, the largest single party in the Legco, and the party largely responsible for giving Hong Kong's modest degree of democracy some thrust.

Next, the vital issue of the future leadership of the HKSAR was smoothly solved but in such a way that it has ended up increasing uncertainty, too. Shipping magnate Tung Chee-hwa was "elected" Chief Executive-designate of the future HKSAR. As with the PL, so with Tung, the "election" was actually a selection process, whereby people chosen by Beijing (the Preparatory Committee or PC) themselves chose a small electorate (the Selection Committee).

In the final "vote" by a small wholly pro-China electorate, Tung, Shanghainese by birth, won going away from the other two Shanghainese candidates left in the race. The only Cantonese (the majority community in Hong Kong) left at the final stage had earlier withdrawn from the "contest".

Given China's stress on anti-colonialism, Tung's selection was publicly justified as being a more open process than that adopted by the British in the secretive choice of their governors. This was, of course, true enough. But it must be the first time in post-colonial history that a new government has sought to legitimize itself by comparing itself to the colonial precedent.

Tung has an affable personality, and represents a degree of continuity in that, until late 1996, he was a member of Patten's Executive Council (cabinet), wherein he approved political reform policies which he now disdains. Tung has the additional advantage of not being linguistically handicapped vis-a-vis the Hong Kong populace, since he is fluent in Cantonese, Mandarin and English.

Yet, so far, his ability to communicate has not yet been used to good effect. To the contrary, his inability to depart in the slightest degree from the line as laid down by Beijing has already led to some disenchantment. Only in Hong Kong, perhaps, are opinion polls being taken on a leader's performance before he actually takes office. Even so, Tung's ratings are falling and are way behind Patten's.

Since Tung has influence without, as yet, full power, some analysts are willing to suspend judgment. He has, in a significant move, secured Beijing's agreement to all the top civil servants in the Hong Kong bureaucracy continuing to serve in the HKSAR. Yet his inability to speak up clearly for Hong Kong's interests is already widely noted, and deplored.

This was most obvious during the initial damaging episode -- China's determined bid to rescind or alter laws which it finds unacceptable or inconvenient. Suddenly on Jan. 19, a sub-group of the PC announced, out of the blue, without any visible debate, reasoned explanation, or wider community discussion, via a Beijing news report from the New China News Agency, that it had been decided to recommend a substantial number of legal changes. Straightaway the issue became highly complex, almost certainly unconstitutional, and shrouded in mystery as a result of the secretive discussions and the complete lack of transparency.

The media encapsulated the issue as an attack on human rights, which was accurate, in the sense that this was clearly one of the aims. Hong Kong's relatively recent Bill Of Rights, introduced by the British to shore up confidence in the wake of the Beijing Massacre, was one of the bills slated for amendment. But there was more to it than that.

The Hong Kong Bar Association wrote a polite but trenchant letter to Tung to which, as far as I know, he has never replied. "The Rule of Law does not merely mean that there is a body of law by which the people will be ruled," the letter began, "The Rule of Law also means that the process of making and repealing law is open, reasoned, and in accordance with the law. If not, those in power can make or change law at a whim, and it will become rule by the people in power".

Not surprisingly, Patten was even more scathing. He ended a 2,000 word statement, inexplicably released without an accompanying press conference, but probably the toughest statement ever issued by a Hong Kong governor, by stressing that "Hong Kong is entitled to know, before July 1, whether China still believes in "one country, two systems", or whether it now wants to impose "one country, one system" in contravention of its international obligations and its solemn promises to the six million people of Hong Kong".

The full PC still went ahead and accepted the sub-groups recommendations on the legal changes, with the same secrecy, absence of explanation, and lack of debate which had brought them forward in the first place. In the following weeks first the Standing Committee of China's National People's Congress (NPC) endorsed the changes. Then the full session of the NPC in early March accepted a work report from Foreign Minister Qian Qichen in which the changes were mentioned but not justified.

"Rule by the people in power" was thus clearly illustrated. The only explanation offered for changing or deleting 26 Hong Kong laws has been a circular one -- these laws contravene the Basic Law because they contravene the Basic Law.

These surface developments are worrying enough. They are not the only ones. Even the economy is not immune. The hefty purchase by a mainland Chinese firm of a sizable chunk of the shares of yet another old-established Hong Kong firm raises eyebrows even in the business community, which has been the most sanguine about the future.

This time, it was China buying into China Light and Power, a major electric power utility. Previously it was the Chinese purchase of a large number of shares in Cathay Pacific, Hong Kong's main airline. Certainly close to market prices were paid for each of these deals. The transfer no doubt made sense to seller as well as buyer. But, businessmen quietly ask themselves, does this mean that China seeks economic as well as political control?

Even greater anxiety arises from the tendencies which underlie these developments. The attack on Hong Kong laws not merely endangers human rights -- it threatens the separate Hong Kong legal system itself. The bleak prospect is that the Provisional Legislature and the proposed changes, will come under sustained legal challenge, before or after the transfer of sovereignty.

If that challenge is upheld by the courts, then China will almost certainly fall back upon its system of making retrospective laws to suit circumstances -- and Hong Kong's rule of law will have been virtually demolished right from the start.

If the challenge is rejected, then many will fear that Hong Kong's judges are already trimming their sails to the China wind. It looks like a lose-lose situation.

Meanwhile the fundamental right which may fail to make it through the handover is the crucial right of habeas corpus. When China abolished 26 laws, one of the laws abolished extended the right to seek a writ of habeas corpus to Hong Kong. With a month to go the British have yet to produce a law localizing habeas corpus, let alone pass it. One such law is promised. Legco may just manage to pass it in time, even though too few Hong Kong persons appeared concerned over such a vital matter.

All-in-all, as July 1, 1997 draws nearer, there is no lack of meaningful and dramatically relevant themes, out of which absorbing movies could be made. Whether China's epic The Opium Wars will be one of them remains in doubt. Yet it is possible to see one way in which that promised journey into the historical past will be highly appropriate.

When, in the early 19th Century, the British sought to open up China to the outside world, Chinese mandarins frequently responded by asserting that reality was what they asserted it to be, regardless of the facts.

As Chinese leaders of today assert that all Hong Kong compatriots are eagerly looking forward to the return to the motherland, that everything is going smoothly in preparation for the handover, that the British are the only ones making difficulties, and that everything China is doing is perfectly legal, it is as if the Middle Kingdom world of 155 years ago is being replayed in real life, not just in a movie.