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Endorsement of Andrew Li as chief justice On May 24, the PLC unanimously supported Andrew Li Kwok-nang as post-handover chief justice, backed by Secretary of Justice Elsie Leung Oi-sie. Facing the criticisms of those who were against the PLC, Elsie Leung was quoted as saying on behalf of Andrew Li: “Unless the Judicial Officers’ Recommendation Commission has acted irrationally, any attempts to vet appointees would be seen as attempts to politicise judicial appointments or to subjugate the Judiciary to the legislature”. It seems that they are prepared to defend themselves against arrows from their rival democratic camp. She added that the Commission had “operated completely independent throughout the selection process”. According to South China Morning Post, “independents as well as members from various political parties welcomed the recommended appointment, calling Mr. Li impartial”. However, part of the community claimed that the PLC was not the appropriate body to back the endorsement of Andrew Li. Democratic Party chairperson Martin Lee Chu-ming said that the legal basis of the PLC had been under challenge, and so had been the Chief Justice whom it approved. Photo by Helena Chui 
Restoration of Public Security Ordinance In mid June 1997, the interim body did the third reading of the controversial revised Public Security and Assembly Ordinance, which was the focus of the offshore media. The ordinance was said to be a contradiction to the Basic Law Article 23. It is stated that demonstrations of more than 20 participants have to be registered with the Hong Kong Police and a permit must be granted. Moreover, political parties could not have connections with overseas organizations. During British rule, the elected Legislature revised this Ordinance in 1992 and 1995. Under the revisions, Hong Kong people were allowed to demonstrate regardless of the size of the demonstration, but notification of the police was required for those involving more than 30 people. The main argument here lies in the changes of “notification” to “permit”. Democrats were afraid that “there will be room for political interpretation and censorship over our demonstrations”. Chief Executive Tung Chee-hwa in his first policy speech insisted that the amendment “is not a human rights issue. It is legalistic and technical in nature and is not controversial”. In his speech, Tung pointed out that there were similar requirements in many American and Canadian cities. However, political and media critics worried that the requirements would be used to prevent demonstrations that the authority did not like — commemorating the June 4 Incident for instance. The community seems to be divided over the matter of whether the changes would erode human rights in Hong Kong, and whether there would be any arbitrary arrest and detention. Former Legislator James Tu Kun-sung said there should be an objective standard to indicate how the revised ordinance was partly or wholly against the Basic Law. He said there was no standard at hand, and so he warned that being “against the spirit of the Basic Law” should not be overgeneralized to defend the action. Media critic Wong Man-fong said the issue affected the long-term interest of Hong Kong people. However, he said the British Government had made a mistake by “making the revision but failing to discuss the matter with the Beijing Government”. Prof. Albert Chan Wang-ngai, the dean of law faculty at the University of Hong Kong, said such changes actually restored colonial laws in force until the ’90s. He was quoted as saying, “The impact on civil liberties will be minimal.” Before it was approved by the PLC, some foreign countries brought complaints over this decision, including Britain and the U.S. The passage of the Ordinance, according to Ms Emily Lau Wai-hing, was “a black day for human rights in Hong Kong”. Mr. Martin Lee showed disappointment with Tung for saying that “the key issue had nothing to do with human rights or law”. |
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Mr. Lee said, “In fact it has everything to do with human rights and law.” He then explained, “Mr. Tung should explain to the Chinese leaders there is nothing to fear in our existing laws. Our people don’t believe in throwing Molotov cocktails just like their counterparts in Seoul.” Democratic advocates like Cheng Kar-foo and Li Cheuk-yan even declared they would keep their demonstrations on schedule, and would “see the modification as nothing and will do only what the current law requires”. Ousted legislator Cheng Kar-foo promised their demonstration in small hours on July 1 would be peaceful |
Photo by Helena Chui
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and rational, and did not intend to be radical, like burning the national flag and symbol. Legal experts’ warning Earlier this year, Prof. Albert Chan pointed out that if the PLC did its third readings after 1 July, it would sidestep the possible legal challenges raised against the PLC. He noted that in the Chinese judicial system, the PLC had meetings and made legislation in Shenzhen and would not be regarded as the second legislature. But the problem was that the PLC was not the Hong Kong Legislature and even though it was a legal body, it had no power to make law. Moreover, its members were not inaugurated before 1 July. The political drama reached a high tide when Mr. Ng King-luen, one of the founders of the Democratic Party, filed a case in High Court claiming the PLC could not operate before the handover. Headed by Justice Raymond Sears, the bench claimed that the case was “doomed to failure”. His ground was that firstly, the PLC was operating in Shenzhen, which was out of the jurisdiction of Hong Kong’s court. Secondly, Justice Sears said the PLC did not hurt anyone in Hong Kong, in a sense that nobody had been punished by it. He said that the interim body was not breaking the law, and he described the action as an attempt to “draw the Judiciary into a highly charged political battle”. Dr. Nihal Jayawickrama, a law professor at the University of Hong Kong, said, “It is a wrong time to put this case to court. “If one puts the case again to court before July 1, the result will be the same,” he said. He explained there was no current law that had the power to stop the PLC from operating, and the existing Legislative Council is still working on its won. He partly agreed with the Judge’s decision: “It does not affect anybody in Hong Kong, in a sense that nobody has been punished by this interim body. “So, it is reasonable for the Judge to dismiss the application of appeal,” said Dr. Nihal. However, he did not think this case was a political issue. He said, “As it can be judged in court as a failure, it is a legal issue that, otherwise the court cannot make any decision on it. It is indeed a constitutional issue.” He commented the democrats’ actions were too early. If it was to be put to court after 1 July, it would be a “very, very strong case”. He said, “You need a very, very strong judge who is unacceptable to the Beijing and the SAR governments.” A senior government official was quoted as saying: “Those who support the PLC would be foolish to think the game is over. . . . It is just the first stage.” |
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October, 1997
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