Features

Robin Fitzsimons

03/04/2003

Robin Fitzsimons describes how lawyers are leading the fight to preserve the rule of law in Hong Kong

Barristers are not always thought of as collective social activists. But in Hong Kong, the Bar has not only spearheaded the campaign for Hong Kong's legal independence, it has led the partially successful onslaught against Hong Kong Government laws to outlaw subversion, sedition, treason and secession. When a modified National Security Bill was presented to the Legislative Council last week, 21 legislators walked out.

The Government said that this legislation was essential to comply with Article 23 of the constitutional Basic Law, but the Bar was outraged when it went further than this requires.

A group of eminent barristers, including four former Bar chairmen, a Dean of Law and Dr Margaret Ng, the journalist- barrister who represents lawyers in the Legislative Council, formed the Article 23 Concern Group to inform and mobilise public opposition against the legislation. Meanwhile, Martin Lee, Hong Kong's best-known advocate and former Democratic Party leader, lobbied governments and business in the US and Europe to condemn the original proposals.

Alan Leong, the outgoing Chairman of the Bar, speaking earlier this year at the ceremonial opening of the legal year, and in the presence of Andrew Li, the Chief Justice, also claimed that the rule of law had yielded "in the name of alleged expediency and efficiency of Government" since China resumed sovereignty in 1997.

"The political will of Government has prevailed over due process," he said.

Leong said that the Government's actions over "right of abode" cases had "sacrificed social harmony and judicial autonomy". An earlier Government referral of an unpalatable decision of the Court of Final Appeal to Beijing for "interpretation" had widened the perceived legal scope to make such referrals.

The Government called his remarks "sweeping and exaggerated" and said that Hong Kong protections under international covenants would remain.

And in what was widely interpreted as a remarkably frank commentary on the threats inherent in the proposed Article 23 legislation, the Chief Justice called on all members of the community, and particularly legislators, lawyers and the press, to exercise "vigilance -not only in relation to the enforcement and interpretation of laws, but also in relation to the formulation and enactment of new laws" in order to preserve the rule of law. He made no explicit reference to Article 23, on which he declined to comment, but a coded message was widely inferred; a South China Morning Post editorial called it "a bombshell statement".

The Chief Justice added for good measure that "rule of law is the proper and effective protection of the individual rights and freedoms which are the heart of Hong Kong's separate legal system".

The collected journalism and legal fraternities have had some success; the Government bowed to public pressure and modified its original proposals.

University librarians won't be imprisoned for mere possession of seditious literature, but they had better not circulate or display it. "Misprision of treason" will not be a crime. And, of some comfort to journalists, the possession of unauthorised information will be criminal only if it is obtained by illegal means.

But it is the coming power to proscribe organisations "subordinate" to those banned in the mainland that most worries Gladys Li, the chairman of Hong Kong "Justice". The Government has not explained why it needs to augment existing proscription powers under national security and anti-terrorism legislation, especially since Article 23 does not even require it. Falun Gong is an obvious target. The Roman Catholic Church is also worried. The Bishop of Hong Kong, Bishop Zen, asks what would happen to Catholics who have links with underground Chinese Catholics. Some liberal western countries may have part-comparable "subversion" laws, but they don't have the track record of China which toughened up Article 23 when Hong Kong erupted after the Tiananmen Square massacre.

Dr Ng is unimpressed by "minor cosmetic modifications" that will allow proscription of Hong Kong organisations banned on the mainland. This "hits directly at 'one country, two systems' and is gratuitous and unjustified. Together with the offence of subversion, it will be a powerful weapon to silence opposition."

The Article 23 legislation is being considered by a Legislative Council of impaired electoral provenance. If the Government's professed respect for the Basic Law is serious, it should be moving now to facilitate universal suffrage in 2007, as this constitution permits. Instead, it is stalling. But if the world's lawyers and journalists maintain their vigilance, the Hong Kong Government just might listen again.