Legality of Provisional LegCoThe Hong Kong Human Rights Monitor is disturbed by the decision of the Court of Appeal in the case of HKSAR v. Ma Wai Kwan. The decision has profound implications for the Rule of Law as well as the autonomy of the HKSAR. We believe that it was unnecessary for the Court of Appeal to decide major and difficult constitutional issues which, if followed, would have extremely negative consequences for Hong Kong.
There were two simple issues before the Court of Appeal. The first was whether the laws which applied in Hong Kong during the colonial period, particularly the common law, continue to apply in the HKSAR. It was argued for the defendants that the only possible source of adoption of such laws was the Reunification Ordinance passed by the Provisional Legislative Council. Since in their view the Provisional Legislative Council was not validly established, the Ordinance itself was void and the laws under which the defendants were charged no longer applied.
The second issue concerned the validity of the indictment under which the defendants were charged, the argument being that since the authority, the colonial administration of Hong Kong, which had issued the indictment was no longer in existence, the indictment lapsed. Similarly the court before which the indictment was laid no longer existed. New courts were set up under the Reunification Ordinance and therefore were not valid. Also invalid was the provision of the Ordinance which purported to continue the indictment. These arguments raised the question of the validity of the Provisional Legislative Council.
The Court held that it was unnecessary to consider the question of the validity of the Provisional Legislative Council since the laws and the indictment were continued by the Basic Law itself and did not need to be formally adopted. However, the Court went on to consider whether the Provisional Legislative Council was in fact valid. It held that it was because the National People's Congress (NPC) had authorised the Preparatory Committee to do whatever was necessary to establish the HKSAR. This view is inconsistent with the Basic Law and the NPC Decision.
The Court also held that the HKSAR courts have no power to examine the Decisions of the NPC or of any bodies set up by the NPC. The reason for this decision is that under the colonial system Hong Kong courts could not question decision of the British parliament or the government, and the Basic Law imposes similar restrictions on the HKSAR courts under Article 19 vis a vis the new sovereign. The Monitor considers that this is a serious misreading of the Basic Law. Hong Kong is not a colony of the People's Republic of China (PRC); it is a part of China. Its relationship with the Central Authorities and other parts of China is set out in great detail in the Basic Law. Article 158 gives the HKSAR not only the right but also imposes an obligation to interpret the Basic Law. If the need to interpret the Basic Law arises in the context of an NPC decision or of any other mainland body, the HKSAR courts have to review that decision. Otherwise the people of Hong Kong will be left without any remedy.
The Court also held that the NPC or the bodies it sets up have complete authority over Hong Kong. The NPC was the supreme body under the PRC Constitution; it was the sovereign over Hong Kong. This is again a serious misreading of the Basic Law and the philosophy of One Country Two Systems. The Basic Law restricts the authority of the NPC over Hong Kong. Examples are the restrictions on the application of NPC laws in Hong Kong (Article 18) and the restrictions on NPC to amend the Basic Law. To hold that the NPC may do whatever it wished in the HKSAR equates HKSAR with any other part of China and denies it its special status that is the basis of the Joint Declaration and the Basic Law.
The Court decision therefore undermines the Rule of Law, by putting certain PRC bodies above the law, and removes any basis for the autonomy of Hong Kong. This is a sad day for Hong Kong. Fortunately since the questionable part of the judgment was not necessary for the decision, it is not binding on other courts. The Monitor hopes that there will be an early opportunity to review the arguments.
The Monitor is also disturbed that neither the Legal Aid Department nor the Government provided the funds for a proper presentation of constitutional arguments on behalf of the defendants. This itself amounts to a denial of the Rule of Law.
The Monitor notes that the Court accepted at face value the arguments of the Government about the impossibility of holding proper elections to the legislature of Hong Kong before or shortly after the transfer of sovereignty. Nor did it question assertions of 'legal vacuum'.
The judgment is inconsistent in many parts. The Court claims not to have jurisdiction to examine acts of the Chinese authorities, yet spends so much time examining the validity of the Provisional Legislative Council. It claims to be applying a purposive and generous approach to interpretation, yet deep down it is most formalistic, especially in its view of Article 19 (on the restrictions on the HKSAR courts' jurisdiction) and the 1990 NPC Decision (on the method for the formation of the first HKSAR Legislative Council) and its acquiescence in the restriction of democracy.