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  • Debatt

The rule of Law in Hong Kong

Med anledning av en artikel införd i Advokaten nr 6 om situationen i Hong Kong har Ian Wingfield och Thomas Lagerqvist skrivit var sin debattartikel.

I should like to reply to the article by David Alvgrim in edition no. 6 2007 entitled “The Government interprets the law in Hong Kong”.  The article gives a misleading picture of the rule of law in Hong Kong since 1997, when Hong Kong was reunited with the rest of China in accordance with the 1984 Sino-British Joint Declaration.

The Basic Law which reflects the Joint Declaration sets out the relationship between Hong Kong and the Central Government and protects the rights and freedoms of residents.

The guarantees of protection are not empty words and residents have on numerous occasions successfully applied to the courts to assert their rights.  For example, the courts have ruled that telephone interception and covert surveillance were unconstitutional and that the legal burden in relation to the possession of dangerous drugs infringed the presumption of innocence.

The Court of Final Appeal currently includes on its panel former Chief Justices from the United Kingdom, Australia and New Zealand.  It is inconceivable that such eminent jurists would remain on a court which “is powerless if told by the government in Beijing how to interpret the law”.

The Basic Law provides that the Standing Committee of the National People’s Congress has the power of interpretation of the Basic Law, but in adjudicating cases, the courts of Hong Kong may interpret on their own the provisions of the law which are within Hong Kong’s autonomy.

The power has only been exercised by the Standing Committee on three occasions and only one of those related to litigation.  The other two related to the term of office of the Chief Executive of Hong Kong and to arrangements for elections.

The litigation related interpretation was given on the right of abode of persons born in the Mainland.  In its interpretation, the Standing Committee stated that for such a person to have the right of abode, one or other of their parents must have had that right at the time of their birth.  The Court had held that such a person could acquire the right if one of their parents acquires it subsequent to their birth. The Standing Committee’s interpretation reinstated the earlier interpretation agreed by the Chinese and British.

Despite that interpretation, the 19 litigants and about 4 100 other persons whose circumstances were similar were given the benefit of the Court’s judgment.  As the Basic Law provides, even where an interpretation is given, previous judgments are not affected.  To suggest on the basis of that case that “the government can make every court decision irrelevant” is clearly a travesty.

On public demonstrations, Mr Alvgrim suggests that there have been mass demonstrations with more than one million participants against Chinese rule.  I am not aware of a single demonstration against Chinese rule, let alone one involving one million participants. 

There was a demonstration with half a million participants in 2003, primarily against legislation dealing with national security, but also showing dissatisfaction with the then Chief Executive’s administration.  Following the withdrawal of the legislation and the Chief Executive’s resignation, participation in demonstrations has greatly diminished.  There are no general restrictions on demonstrations and from 2002 to 2006, 4 692 public processions were held in Hong Kong.  Only three were prohibited on public order or public safety grounds.

On electoral matters, all adult permanent residents have the right to vote in elections.  30 of the 60 member legislature are directly elected on a geographical basis.  There are also elections for the remaining 30 members on the basis of functional constituencies, made up, for example, of lawyers and other professionals.

Proposals were placed before the Legislative Council in December 2005 to make the functional constituencies more representative, but the proposal failed to obtain the endorsement of the necessary two-thirds majority and the previous system has therefore been retained.

Ian wingfield, SOLICITOR GENERAL, Hong Kong Special Administrative Region

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