Hong Kong
IS JULY 198
Let onsider articles 16 and 169. Sir William Wade and Mar Lee suggest some kind of court of final appeal. Sır William believes that it should be chaired internationally, and Martin Lee and the Chief Justice believe that it should be chaired within Hong Kong. In his speech the Chief Justice said of his formulation:
"Regarding the provisions which are within the limits of the autonomy of the Hong Kong Special Administrative Region, the Standing Committee of the National People's Congress will grant fr" power to the courts of the Region to interpret them when adjudicating cases.
The Chief Justice suggests that that proposition should be embodied in the Basic Law. Those questions go to the root of the matter. The agreement is intended to last for half a century and to entrench for that time a different system in Hong Kong founded on the Basic Law. The united view of the legal profession is that it does not.
Article 17 contains the vague phrase about laws that give expression to national unity and territorial integrity. If that phrase is to be included, its meaning must be defined, otherwise it leaves the way open for the arbitrary imposition of law by the National People's Congress which, as the Chief Justice has said, would be wholly contrary to the spirit of the joint declaration.
Article 18 also causes concern because of a particular vague reference to "executive acts", which in turn curtails the powers of the courts. Perhaps the simplest way to highlight the problems that this would create would be to quote an example given by Martin Lee in his commentary on the Basic Law. The House should give credit to those in Hong Kong who have given time, energy and considerable thought to the consequences of the Basic Law. They have tried to brief and explain the problems to hon. Members. The members of the Legislative Council deserve credit, which includes Martin Lee, but credit is also due to the Bar Association, the Law Society. individual groups such as that of Gladys Li, Emily Lau and Winston Poon and others. They have all spent a great deal of time considering this matter and their efforts are of great value.
Article 18 concerns "executive acts" and Martin Lee has given an example that highlights the problem, namely:
"A law-abiding business mar is suddenly arrested in the HKSAR on the ground that the CPG believes him to be a spy. He is being sent to Beijing. In the meantime. his wife goes to a lawyer who immediately applies to the High Court for a writ of Habeas Corpus. But the Court will have to decline jurisdiction if it is satisfied that the matter in question relates to defence affairs, or an executive act of the CPG, and under Article 169, it is up to the Standing Committee of the NPC to interpret this Article. This example shows that all the safeguards of human rights in Chapter 3 could be rendered nugatory.”
That is a simple good example of what is possible.
On the face of it article 38 is admirable and the House will be aware that it deals with United Nations conventions. However, there seems to be a conflict between the joint declaration, which refers to the convenants on civil, political, economic, social and cultural rights and the draft Basic Law's references to the same thing. The joint declaration says that those covenants "shall remain in force". The draft law says that "they shall be implemented". However, in practice, the protection of human rights is now less in Hong Kong than the provisions of the conventions. It seems to many that the proper course would be to incorporate by reference the provisions of the international covenant on civil and political rights into the Basic Law. That would not
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impinge on Chinese sovereignty in the context of the joint declaration. I cannot see who would be offended if there was that entrenchment of human rights in Hong Kong. It would add considerably to confidence in the colony.
Article 172 gives the National People's Congress rights of annulment, which are enormously sweeping. I cannot see that they can be justified in any way. What I have said already in regard to articles 16, 17 and 169 applies. That section was added late on. There is an argument for reconsideration and possibly deletion.
Finally, on the legal side, there is the issue of language, which was mentioned by the hon. Member for Wycombe (Mr. Whitney). Two languages are involved English and Mandarin Chinese. I confess that it took me some time to comprehend that difficulty because on the face of it it seemed to me, as a reasonably informed person, impossible that anything in English could not be translated precisely into Chinese, and vice versa. Those are two great languages and I thought that there should be no problem, but, as the hon. Gentleman properly said, the difficulty stems from two entirely different traditions. Language reflects tradition and cultural mores in a way that we become so used to that we do not notice it. For example, the concept "burden of proof" has no direct translation into Chinese. For the Chinese, the adversarial concepts of the common law to which we are accustomed are alien.
The joint declaration gave English and Chinese equality. I believe that the Basic Law should do likewise and enable cases to be founded on either. I doubt whether the integrity of the common law system can be maintained without an authentic text in English.
Against the background of those core legal concerns, I should like to refer to the political system and democracy, to which the right hon. Member for Manchester, Gorton (Mr. Kaufman) referred. I accept what he said about the considerable movement in the Chinese attitude on democracy and acknowledge that. It is an earnest of their good intent and, as the right hon. Gentleman said. the 50 per cent. proposition that is contained in the alternatives contrasts markedly with the 18 per cent. in 1991 proposed by the Hong Kong Government, presumably at our behest, or at least with our advice or acquiescence.
It was a bad mistake not to introduce a directly elected element this year. I shall not rehearse the arguments, which we all know, about who thought what and which opinion poll was valid. If one is to do that, and it is agreed that one will do it, the more quickly it is done the better, because it means that there is a longer time to bed down and for the people of Hong Kong to become used to a system that they are not accustomed to, as has been rightly said. They have been used to freedom and to saying what they like, but they have not been used to electing members on their behalf. My view as a Liberal [HON. MEMBERS: "A what?"]
Mr. Foulkes: A Democrat.
Sir Russell Johnston: I am a Liberal and shall remain a Liberal. The fact that I am in the Social and Liberal Democrats does not make me stop being a Liberal.
Mr. John Marshall (Hendon, South): There were not too many of those at Kensington.
Sir Russell Johnston: I do not think that we should get on to Kensington at this stage.