Bowing to China, a Court Leaves Hong Kong on Edge

A Hong Kong court’s landmark rejection of a challenge to the territory’s appointed legislature and the laws it passes averted a constitutional crisis Tuesday but opened an era of judicial uncertainty here.

Less than a month after the end of British colonial rule, Hong Kong’s three-judge Court of Appeals dismissed a challenge to the Provisional Legislature by ruling unanimously Tuesday that it has no power to decide the legality of the body, which was created by a resolution of China’s parliament.

Opponents of the court’s action say the decision will erode Hong Kong’s autonomy, and they predict a fresh wave of legal challenges.

Andrew Cheng, an elected legislator who was displaced when the provisional body took office, said the ruling means China’s parliament can continue to impose Beijing’s will by overriding Hong Kong’s constitution, or Basic Law, which is meant to guarantee the territory’s autonomy.

The Appeals Court deliberated three hours before quashing an argument that the appointed legislature is invalid because the Basic Law says the body must be elected. It also rejected a claim that laws enacted before the colony was handed over to China ceased to exist on July 1 because they were not formally adopted by the incoming legislature.

Daniel Fung, the government’s lawyer, rejected the notion that Hong Kong had given away some of its rights, saying there are limits to the “high degree of autonomy” promised by China. He noted that under British rule, Hong Kong courts could not challenge decisions by Britain’s Parliament.

“You can’t give up what you don’t have, and that’s the bottom line,” Fung said.

An appeal of the decision to Hong Kong’s highest court is expected.

The new legislature, like the Basic Law, was approved by China’s National People’s Congress--and China has sovereignty in Hong Kong now, Fung said. The Chinese congress retains the power to change Hong Kong’s constitution, though China has promised the territory virtual autonomy.

Martin Lee, the leader of the Democratic Party and another elected legislator ousted by the new appointed body, said he was “very disappointed” by Tuesday’s ruling. His party had by far the largest bloc of seats in the pre-hand-over elected legislature; now it has none.

“This case raises very serious implications for the future of Hong Kong’s rule of law and autonomy,” Lee said. “There must be something seriously wrong if the Chinese government can introduce an appointed body, ignore the Basic Law at will, and Hong Kong courts cannot do anything about it.”

Tuesday’s ruling grew from a side argument in a corruption case involving an off-duty police officer and a stolen Rolex watch. When the police officer’s lawyer argued in a lower court that the 2-year-old case should be dropped because pre-hand-over laws and charges were invalid, he was arrested for “conspiring to pervert the course of justice” and found himself sharing a seat with his client in the dock.

The case offered a bizarre mix of traditions from Hong Kong’s past colonial masters and its current Communist overlords. In a courtroom dominated by the red-starred emblem of the Hong Kong Special Administrative Region of the People’s Republic of China, barristers wearing horsehair wigs intoned Latin and the queen’s English and presented their arguments with rulings from a different age.

No less incongruous was the defense team, an unlikely combination of the territory’s top constitutional experts sparring alongside criminal lawyers more accustomed to defending gangsters.

On the first day of the case, last week, several of Hong Kong’s top legal minds stepped out from the public gallery to volunteer their services to the faltering defense team. They borrowed wigs and gowns and extemporized on constitutional conundrums.

Cases expected to further challenge the legality of the Provisional Legislature include objections to a recent law it passed revoking constitutionally guaranteed residence rights for children who have immigrated illegally from mainland China.

Even if the Provisional Legislature survives more challenges, it will be replaced next year by an elected body, a move that should quell some of the uncertainty in Hong Kong. Beijing has said it decided to set up the current body only because Hong Kong’s last British colonial governor, Chris Patten, bulldozed ahead with the last legislative elections without consulting China on the terms of the vote.