Legal crisis brews in China; Ruling sparks dispute over independence of Hong Kong judiciary


BEIJING -- When Hong Kong returned to China 19 months ago in a blaze of fireworks and tearful farewells, many feared that the mainland would trample free speech and human rights in the free-wheeling former British colony.

Instead, the territory and its motherland now find themselves on the brink of a constitutional crisis over a matter even dearer to the hearts of Hong Kong's business-minded people: the rule of law.

The conflict, the biggest since the July 1997 handover, revolves around a ruling last month by Hong Kong's Court of Final Appeal that would allow tens of thousands of mainland children with Hong Kong parents to live in the territory. On Saturday, leaders in Beijing told Hong Kong's justice secretary, Elsie Leung, that part of the ruling should be "rectified."

Beyond the legal rhetoric and the case at hand, the dispute is really about who calls the shots in Hong Kong. It pits the territory's independent judiciary against their masters in Beijing. At stake, some say, is the integrity of Hong Kong's rule of law -- the cornerstone of its successful economic system.

"If the National People's Congress [China's parliament] should come out and overturn the verdict, that would send a very clear signal to the world that the decisions of the Court of Final Appeal are not final," says Emily Lau, an outspoken member of Hong Kong's legislative council. "I think it would deal a very devastating blow to Hong Kong as a whole."

The court and the congress are at loggerheads over which body has the power to interpret the Basic Law, Hong Kong's constitution. The Basic Law is designed to guide the "one country, two systems" relationship between the territory and the mainland.

Under the Basic Law, China guarantees Hong Kong a high degree of autonomy in running local affairs, but retains authority over such areas as defense and foreign relations.

The question of control arose in the case of mainland children who have a father or mother in Hong Kong and want to live there. Beijing fears that an onrush of mainlanders could create more trouble for Hong Kong's beleaguered economy, which is limping through its worst recession in decades.

After the handover, China installed a legislative council that passed a law limiting the right of residency for mainland offspring. The Court of Final Appeal, however, made a ruling last month that would allow many mainland children to stay in Hong Kong.

The court also ruled that it had authority over the immigration issue and could invalidate decisions made by China's National People's Congress. Fearing a precedent that would undermine its control of Hong Kong, mainland officials said the ruling should be changed.

"The decision of the Hong Kong court was a mistake," Zhao Qizheng, director of the State Council Information Office, told reporters last week.

In a region riddled with corruption, the rule of law is one of the qualities that distinguishes Hong Kong from most of its Southeast Asian neighbors as well as mainland China. Although there are efforts to improve the rule of law here, China's legal system remains one in which people can be sentenced to years in labor camps without trial and political dissidents are sometimes refused the benefit of counsel.

While the Hong Kong Bar Association has expressed great concern over the case and some are worried about its potential impact on the confidence of foreign businesses, not everyone sees it as a major threat.

Hans Vriens, a senior consultant with APCO Asia, a public affairs and strategic communications firm, thinks the conflict is fundamentally political and less likely to have an economic impact. More striking, he says, is the bluntness of Chinese statements in what has -- until now -- been a fairly smooth relationship between the mainland and post- colonial Hong Kong.

"I don't think there is much worry in the foreign business community about this case," says Vriens. "What we are surprised about is the return of megaphone diplomacy from Beijing."

The comments out of Beijing are the latest in a series of incidents that have raised questions about the fairness and independence of Hong Kong's legal system.

Leung, the Hong Kong justice secretary, declined to prosecute media tycoon Sally Aw in a recent fraud case involving phony circulation figures at her newspaper, the English-language Hong Kong Standard. Leung argued that she lacked evidence and feared that pursuing charges could cause the collapse of Aw's company and the loss of 1,400 jobs in Hong Kong.

Aw is a close family friend of Tung Chee-hwa, the Beijing-anointed chief executive of Hong Kong.

In December, Hong Kong gangster Cheung Tse-keung -- known as "Big Spender" for his gambling habits -- was executed in mainland China for various crimes, including the kidnapping of two tycoons in Hong Kong. The Hong Kong courts, which have no death penalty, did not handle the case.

As the dispute over the court's residency ruling moves forward, people on both sides of the debate in Hong Kong are urging caution and calm.

"I don't think we should be surprised or uncomfortable about this conflict arising," says Tsang Yok-sing, chairman of the Democratic Alliance for Betterment of Hong Kong, a pro-Beijing political party. "After all, this is a very new experiment."

Philip Dykes, vice chairman of the bar association, thinks the next step is for China to clarify its objections.

"I'm still waiting to hear what the mainland has to say by way of a detailed explanation," Dykes says.

If the mainland presses the issue, there seems little doubt over who will win. While Hong Kong's prosperity is extremely important to the mainland, Hong Kong is also a part of China. The mainland has a population of more than 1.2 billion while Hong Kong is a territory of about 6 million on the South China Sea.

"We have to accept now that we are a colony of Beijing," says Vriens. "We have new political masters and we have to dance to their tune."

Pub Date: 2/16/99

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