Chinese rule threatens the legal system

Hong Kong hand-over
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The Independent Online
The opening of Hong Kong's legal year with the parade of judges in their long wigs, the barristers in their shorter wigs and the swish of robes, is almost certain to become a thing of the past. Abandoning this kind of anachronism may well be no bad thing; but there is a widespread uncertainty about whether the symbolic changes will be overshadowed by substantive changes to the legal system.

Elise Leung, who will be the Secretary for Justice in the Special Administrative Region of Hong Kong goverment, insists that the basic tenets of an independent judiciary and the rule of law will be preserved, albeit with changes having to be made. "Just give us a chance to prove it works," she requests.

The trouble is that many legal practitioners already have serious misgivings. Margaret Ng, a legislator representing the legal profession, has emerged as one of the most articulate doubters. "I think the system is very vulnerable," she says.

China is finding it difficult to persuade critics that the system will retain its integrity, and the list of pressure points is growing. First, problems are mounting over the translation and origination of laws in Chinese, as opposed to English, a process started by the current administration.

Miss Ng has no quarrel withthe notion that a community which is overwhelmingly Chinese should be served by laws in the language of the people, but believes that the rush to introduce the Chinese language is roaring away without acknowledging the problems. Moreover, it is undermining the common law system which is supposed to be maintained under the new order. "It would be wonderful to teach the common law to speak Chinese," she says. But concepts of the common law do not readily accommodate themselves to expression in Chinese.

Miss Leung freely admits the use of Chinese is highly problematic. As a lawyer, even she had to refer to English texts to make sure of meanings and interpretations which were not clear in her mother tongue. "We don't want to sacrifice the quality of justice to achieve bi-lingualism," she says.

Under the new system, China's National People's Congress (NPC) has the power of interpreting the Basic Law, Hong Kong's new mini- constitution. Miss Leung says bluntly that "this is a very difficult concept in the common law, because under the common law only the courts have the power of interpretation". In China, interpretation is the responsibility of political bodies.

She believes that the guarantee of a high degree of autonomy in Hong Kong ensures that Chinese bodies will play no more than a minimal role in the territory's legal system, but says "I'm not saying it's going to be an easy thing" to reconcile the two systems. Part of the problem is that it remains unclear which aspects of interpretation will reside with the NPC. It is assumed that China will intervene only on issues relating to national security. This may well include political challenges to the government.

"There's a very dangerous suggestion around town these days," says Miss Ng, "that as far as commercial disputes are concerned the old system will remain, and only in political and criminal matters you will have less protection. The two are deeply connected. Once privilege creeps in, the rule of law is at an end."

In a speech to businessmen last October Chris Patten, the Governor of Hong Kong, said "the rule of law is not an optional extra. It is what makes Hong Kong different, it is what makes Hong Kong successful".

Already, politics appears to be creeping in. Some eyebrows were raised by the appointment of Miss Leung, a stalwart supporter of the Peking government and member of the National People's Congress. "I can see how the public reacts to it," she says. Further suspicions were aired when Tung Chee Hwa, the new Chief Executive, decided to drop two members of the commission which appoints judges. One was Sir Joseph Hotung, a benefactor of pro-democracy causes; the other was Eleanor Ling, an executive of the Jardines group, the British- controlled company most disliked by China.

The new commission's first job will be to appoint the Chief Justice. Many say that if the high court judge Benjamin Liu is appointed, the politicisation of the judiciary will be there for all to see. Justice Liu is a member of one of Hong Kong's most stalwart pro-China families.

"If judges are chosen for political correctness", warns Miss Ng, "we will get a bunch of judges valued not for their legal qualifications but for political considerations." Although the current legal system is described by some as a paragon virtue, it is not free of critics. Both the judiciary and the government's scandal-prone legal department have been embroiled in controversy.

Last week the new legal system was given an unexpected boost when the United States Supreme Court turned down an appeal by a Hong Kong fugitive who had hitherto been that the new order could not guarantee a fair trial.