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China: Letter From Hong Kong, Part II

Hong Kong, 20 January 1997 (RFE/RL) -- Judges in Hong Kong, dressed in their ceremonial finery of wigs and scarlet robes, took part in the annual parade marking the start of the legal year last week for the last time before the British colony reverts to Chinese sovereignty.

The question on everyone's mind during the pomp-laden ceremony was: Will China live up to its promise to preserve an independent judiciary in Hong Kong after the handover on June 30?

With about 160 days before the curtain goes down on more than 150 years of British colonial rule, many of Hong Kong's 6.4 million, mostly Cantonese inhabitants fear their legal freedoms are in jeopardy.

Beijing has pledged that Hong Kong can retain its English-style common law system for 50 years after the handover. But Hong Kong's pro-democracy activists fear that party bureaucrats may renege on the pledge by curbing the independence of the 171-strong judiciary.

In a speech marking the start of the new legal year, Hong Kong's chief legal officer, acting Chief Justice Noel Power, sent a clear plea to Beijing not to interfere with the rule of law in the territory.

He said the judiciary provides the mechanism by which the coercive powers of the executive are exercised, and ensures that citizens are protected against any abuse of official power.

"In the last resort, the freedom of us all rests with the courts," he said.

The law in Hong Kong is derived generally from that of the United Kingdom. The judiciary is headed by the Chief Justice who is appointed by the British colonial governor on instructions from London.

In practice, critics say, the legal system is flawed because, like so much in Hong Kong, it is a legacy of colonial rule and, as such, has many anachronisms left over from the British Empire.

Until recently, the courts conducted their proceedings mainly in English -- despite the fact that the first language of 98 percent of the colony is Chinese. Moreover, the judges and lawyers are drawn mostly from Britain or former British colonies or dominions.

British writer Jan Morris recalls attending a trial some years ago in which a young Asian refugee, charged with murder, appeared before a British judge, Australian, New Zealand and Indian lawyers, and a jury of five Europeans and two Chinese. The hearing was conducted in a language he did not understand under the crest of a monarch living on the other side of the world. Morris found the spectacle demeaning.

Critics also say it is an absurdity of colonial rule that the judges are rigged out in horsehair wigs, scarlet robes and buckled shoes, a regalia that is entirely inappropriate for Hong Kong's tropical climate.

As the handover looms, the British authorities have introduced reforms. They have created bilingual legislation; introduced the Chinese language into courts; and Chinese language jury trials. Today, 60 percent of hearings in magistrates courts are heard in Chinese. More than half of judicial officers are now recruited locally.

The respected "South China Morning Post" editorialized last week that these reforms mark a "great advance for the common people, enabling them to follow court proceedings, and giving them a proper insight into the legal process, and a sense that laws are made for them."

But the drive to make the legal system more Chinese is not without problems. Many lawyers fear it will lead to the abandonment of the English common law system and its replacement by the Chinese legal system which critics say is arbitrary and careless of individual rights.

Common law is the body of law developed in England, primarily from judicial decisions based on custom and precedent, and constitutes the basis of the legal system in the English-language world, including the United States. It rests on the principle that an individual is entitled to fair treatment and justice administered impartially by the courts.

Hong Kong Law Society president Christopher Chan Cheuk fears that the wholesale swing to the Chinese language will eventually lead to the abandonment of the common law system. This fear is deepened by the fact that English language skills in the colony have declined since 1984 when Britain and China signed the handover agreement.

If the common law system disappears, to be replaced by a system that pays less regard to fairness and justice, many in Hong Kong may have reason to regret the demise of the British-administered legal system, for all its bewigged judges and colonial anachronisms.