Ottawa Citizen

Tuesday 29 July 1997

HONG KONG - A court crushed a challenge to Hong Kong's unelected legislature Tuesday in a case that highlighted the limits of the territory's autonomy under China.

The legislature was endorsed by China's parliament, and Hong Kong courts could not overturn it, Patrick Chan, presiding over the three-judge Court of Appeals, said in the ruling.

The unanimous judgment spared Hong Kong a constitutional crisis.

But jurists critical of the new legislature said the decision set a bad precedent because it accepted the right of China's parliament to override the Hong Kong courts.

Daniel Fung, the government's lawyer in the case, appeared to acknowledge this problem, saying: "That's the deck we have been dealt in this game and we play that hand . . . We don't overturn the card table because we don't like the results."

Speaking to reporters, he rejected the notion that Hong Kong had lost some of its autonomy. "You can't give up what you don't have, and that's the bottom line," he said.

"The real question is, what are the limits of that autonomy? And that question has been answered by today's judgment."

The ruling, in Fung's words, outlined certain parameters of the high degree of autonomy China has promised its newly recovered territory.

It came on the 28th day of a post-colonial era in which daily life has barely changed, but the new government is still striving to establish a status quo that China and Hong Kong can both live with.

The trickiest issue is the provisional legislature China set up to supplant the elected one, which it says was chosen under rules it never accepted.

Tuesday's court ruling stemmed from a routine corruption case but became a landmark when the defendants claimed the provisional legislature was invalid, the English common-law system had lapsed, and so had the charges against them.

Chan ruled that "the common law has survived the change of sovereignty."

Hong Kong became a Special Administrative Region of China on July 1.

The provisional legislature was ratified by the National People's Congress "in a sovereign act which the Hong Kong SAR courts cannot challenge," Chan said.

Fung insisted Hong Kong was no less autonomous now than when it was a colony subservient to the British parliament.

But lawyer Andrew Cheng, a former legislator belonging to the Democratic party, said things were different now that the supreme lawmaking body was the National People's Congress in Beijing.

"Nobody believes that it is a real people's congress. It is an appointed structure to serve the Communist party," he said in an interview.

Opponents of the provisional legislature say it violates the Basic Law, the post-colonial constitution that spells out Hong Kong's relationship with China.

Constitutional scholar Nihal Jayawickrama warned that the ruling gave the Chinese parliament "a free hand to vary the terms of the Basic Law . . . and there's nothing the Hong Kong courts can do about it."