Court saves Hong Kong from crisis

Judges avert collapse of legal system and declare pre-handover laws valid in landmark decision

A constitutional crisis has been averted following an appeal court ruling yesterday which declared Hong Kong's controversial provisional legislature to be legal and affirmed that all laws in operation before the 1 July handover to Chinese rule continued to be valid.

Such was the magnitude of the challenge that the government has prepared contingency plans to avert a virtual collapse of the legal system. However, three appeal judges were unanimous in turning down an application from lawyers representing three defendants who had appealed against continuation of their trial on grounds that the court no longer had jurisdiction over the case.

Clearly relieved by the ruling, the Chief Executive, Tung Chee-hwa, issued a statement welcoming the decision. "The litigation demonstrates the respect the society has towards the rule of law," the statement said.

The government's top barrister, the solicitor general Daniel Fung, argued its case. He faced three of Hong Kong's most respected lawyers, led by former Bar Council chairwoman Gladys Li, who volunteered their services.

Mr Fung successfully argued that Hong Kong courts had no jurisdiction over constitutional decisions taken by China's National People's Congress, which is generally regarded as a rubber stamp parliament. He said that this was no more than a preservation of the status quo established by Britain, the former colonial power. For example, it would not allow Hong Kong courts to challenge the Letters Patent under which the Governor had wide powers to rule.

Chief Judge Patrick Chan, however, maintained that "it is the duty of Hong Kong courts to ensure that legislation is properly enacted". In other words he ruled that the territory's courts were able to decide whether constitutional laws had been put onto the statute books in a proper manner but could not question their substance.

This ruling appears to be a body blow for lawyers who argued that China's promise of autonomy for Hong Kong should extend to the local judiciary's right to determine the legality of constitutional decisions made in China and applied to Hong Kong.

Equally depressing for opponents of the provisional legislature, installed in place of the elected body, was the judges' unequivocal view that it had full legal standing.

Miss Li had argued that it was an illegitimate body because not only was it not provided for in the Basic Law, Hong Kong's mini-constitution, but also its composition contradicted the provision of the Basic Law. Mr Fung, however, maintained that China had been forced to establish this body to prevent the creation of a legal vacuum following the end of British rule when, as a result of political disputes, Hong Kong was left with a legislature which did not conform to China's requirements. He said that provisional legislature was purely an interim body with limited powers and a limited life.

Mr Justice Barry Mortimer fully endorsed this view, saying, "far from breaching the Basic Law the formation of the Provisional Legislative Council was consistent with arrangements for complying with the law".

After the ruling, Miss Li said she believed that the legality of the legislature could still be open to challenge. Other legal challenges are in the pipeline, notably those by parents of illegal immigrant children facing deportation. They maintain that the Basic Law has been breached by these deportation orders.