April 19, 2005

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Not rushing to judgement

Have you read about Hong Kong's recent collapse? The slump in the economy? Riots and looting? An end to trade? No more international contacts or travel? Didn't think so. But some in the Government think it could happen, and soon.

Before we get to that, the Hong Kong Government's scurrying off to Beijing for an interpretation of the Basic Law to sort out the Chief Executive mess has lead to some convoluted justifications and flip flops. The Don has said we need to prevent chaos in Hong Kong.

But most disturbing is Elsie Leung, the Secretary for Justice, and her opinion in today's SCMP (reproduced below). Hong Kong's top legal official is basically saying the court system is too slow and unable to handle something of such import. They want to take the short-cut she says is open to the Government and go straight to Beijing. It doesn't say much for her faith in Hong Kong's courts.

Why should this decision be rushed when every other Hong Konger has to wait for the slow wheels of justice to turn? If courts are too slow then fix that.

What really puzzles me is the idea that Hong Kong cannot allow the election for Chief Executive (CE) to be delayed while waiting for the courts to decide the matter. Why is it so vital the CE be elected on July 10th? The Don has been temporary CE for a month or more. I challenge anyone to point out the difference, except perhaps fewer gaffes. It's been business as usual. Hong Kong is continuing to do what it does best: get on with things. Will all this end if the CE election is delayed, even if it requires a new Election Committee to be formed? No, of course not. Is it worth subverting the Basic Law and due process to beat this deadline? No. This idea that certainty is required or Hong Kong falls apart is absurd but drives the Government's thinking.

The reality is no-one cares. The Don will be elected one way or another. It's just a shame it is at such a cost.

I still maintain they should ask for an interpretation over the Link IPO while they're at it, before the courts hear the final appeal.

Time is of the essence

The Bar Association has expressed disappointment that the acting chief executive has asked Beijing for a Basic Law interpretation over the term of office of the next chief executive, and that "the legal issues cannot be properly argued and resolved by the court". I would like to explain why the request is essential, even though Hong Kong courts have been asked to determine this issue, and why it does not interfere with judicial independence.
The government respects a resident's right to institute legal proceedings against the acts of the executive authorities and their personnel. The proceedings instituted in respect of the chief executive's term of office relate to a matter of great public importance.

This being so, the government did not oppose leave being granted to legislator Albert Chan Wai-yip to apply for a judicial review. However, the government cannot afford the luxury of letting things run their natural course. It must do everything possible to ensure that the new chief executive is elected smoothly on July 10.

Remedies in judicial review proceedings are discretionary. Therefore, the court may decline to resolve the issue. For example, the court may decide that an applicant does not have sufficient interest in the matter to which the application relates. It may also refuse to intervene in the legislative process prior to the enactment of the Chief Executive Election Amendment Bill.

If the Court of First Instance declines to come up with a remedy in the current proceedings, the issue of whether the new chief executive's tenure should be five years or the remainder of the original term will remain unresolved. Moreover, the question could again be raised by way of a judicial review at any time within 90 days after the amendment bill is passed.

I have every confidence that our courts would act quickly in such circumstances. In the government's view, the Court of Final Appeal would be required to refer Article 53 (2) of the Basic Law, which concerns the tenure of the chief executive, to the National People's Congress Standing Committee for an interpretation. This will all take time.

Some critics have suggested that the election should proceed on the basis that the chief-executive-elect could take office subject to the final determination of the meaning of the relevant article through the courts.

However, the government cannot conduct an election in a manner that contravenes the Basic Law. If the Court of First Instance were to decide that the amendment bill contravenes the Basic Law then, pending an appeal, the government could not proceed on the basis of the amended ordinance. That would be disrespectful to the rule of law. Furthermore, potential candidates and the Election Committee are entitled to know the term of office.

The interpretation, if carried out, will be the same whether it is made by the standing committee on its own volition, at the request of the State Council on behalf of the Hong Kong government, or at the behest of the Court of Final Appeal.

Since an interpretation is provided for in the Basic Law, it is constitutional and lawful. I appreciate the reluctance of many in the legal profession to accept the power of the standing committee to interpret the Basic Law, but such an interpretation is part of our constitutional structure.

Looking ahead, I hope that other issues relating to the chief executive's term of office can be resolved without seeking a further interpretation. The government will help facilitate exchanges between the judiciary, legal experts and academics in Hong Kong and the mainland, with a view to agreeing about how our domestic law can clarify the situation.

A final note. Lawyers were planning to march today from the High Court to the Court of Final Appeal in protest. The walk takes around 6 minutes at a liesurely pace. I wonder which poor customer they'll all bill for that.

posted by Simon on 04.19.05 at 05:18 PM in the


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