London 'kowtows' on Hong Kong court

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The Independent Online

Hong Kong

There were dark mutterings about Britain returning to its old policies of "kowtowing to China" yesterday as the British and Chinese governments announced they had broken a four-year impasse by reaching agreement on establishing a court of final appeal for Hong Kong. It will replace the Privy Council after China takes over the territory in 1997.

This is the first substantive Sino-British agreement on Hong Kong matters in four years and appears to have been reached after substantial British concessions.

Chris Patten, the Governor of Hong Kong, has spent the past three years seeking to dispel the impression that Britain will make endless concessions to Chinese demands. Last night his officials were saying he had preserved important principles yet still demonstrated that an agreement could be reached.

Being seen as a central player in forging this agreement, the Governor has deepened his isolation in Hong Kong. He is already persona non grata among the pro-China community and is shunned by the majority of business leaders. His role in this deal will quickly dispel the lingering support he enjoys within the pro-democracy camp.

It identifies two crucial areas in which China has extracted a heavy price for its agreement. First, Peking has ensured that the court will not be established until after China resumes sovereignty over Hong Kong. Second, sensitive issues, covered by the term "acts of state", will be referred to Peking and not the court. This would include defence and foreign affairs.

Mr Patten told a specially convened meeting of the legislature that the agreement to establish the court "will avoid any question of a judicial vacuum in 1997". He was referring to China's threat to dissolve any court established without its agreement. The Governor conceded that he would have preferred to have seen the court established before 1997 but said the agreement ensured that the court would be maintained under Chinese rule and that Hong Kong could "guarantee the nature of the court of final appeal".

Despite Mr Patten's assurances, the agreement came under immediate attack from legislators on all sides, who may yet again prevent its enactment.

Martin Lee, leader of the Democratic Party, described the agreement as being in "Britain's interests and not in Hong Kong interests". He was particularly angry over Britain's concession exempting acts of state from the court's jurisdiction. He said this undermined the prevailing common law system and would create a great many uncertainties.

Other councillors drew attention to the previous British concession under which only one foreign judge would be allowed to serve on the appeal court. This, they said, was at variance with the 1984 Sino-British agreement allowing a number of foreign judges to serve the court.

It was this concession, made in 1991, which provoked legislators to reject the Sino-British court of final appeal agreement. Britain only managed to reopen a dialogue on the issue with China last March. Preservation of the rule of law and the integrity of the judiciary have emerged as key concerns for Hong Kong's future.