Hong Kong Enters a Legal Quagmire

After the clocks strike midnight on June 30, 1997, Hong Kong police are expected to take up positions outside the building that now houses the elected Legislative Council.

And as the world watches, the British colonial rulers of Hong Kong are scheduled to hand over the formal trappings of power to their Chinese counterparts at a ceremony a few blocks away.

But some cameras will be focused on the black-bereted security forces as they surround the legislature. It is still unclear whether the police would follow an order from Beijing to evict the holdouts from the current, popularly elected Legislative Council (Legco) or an order from the local courts to bar members of China's hand-picked alternative body from entering the building. This weekend, 400 of Hong Kong's business and professional elite carried out Beijing's mandate to select a Provisional Legislature to replace Legco, which last year gained power in a free vote.

"Many democrats have vowed not to leave the Legco building, and Beijing doesn't know how to handle the situation," says a senior Chinese official. "It is our greatest fear that the controversy becomes overheated."

No matter which set of legislators - the old elected ones or the China-appointed members - engages in a face-off with the police, the conflict will only be the eye of a storm that promises to rage throughout Hong Kong's courts and corridors of power.

Martin Lee, legislator and chairman of Hong Kong's Democratic Party, says he intends to challenge the constitutionality of the Provisional Legislature. Hong Kong's Basic Law, or constitution for post-British rule, states that one-third of the 60 representatives should be determined "through direct elections."

Instead, the China-appointed Selection Committee largely voted itself into office, taking 51 of the seats. The remaining nine seats were largely taken by pro-China figures outside of the committee.

To contest Beijing's action, London says it wants the World Court to decide whether Beijing violated the 1984 Sino-British Joint Declaration - the treaty covering the handover - by ignoring a provision that says Hong Kong's "legislature will be elected."

China quickly refused to submit to the World Court's jurisdiction. Foreign Minister Qian Qichen said that following Beijing's takeover, Hong Kong's rule would be "China's internal affair," and added that it is "futile for Britain to play any international card."

"Britain has a long history of sowing chaos while withdrawing from colonies," continues the Chinese official, who spoke on condition of anonymity. "Just as it sabotaged India and Palestine, London is laying the seeds of turmoil in Hong Kong," he claims.

Mr. Lee, who has allies in the US Congress, said London's "11th hour" threat was unlikely to stop the Provisional Legislature, but indicated his attack in the local courts had a much greater chance of success. He says he aims to use Hong Kong's British-derived legal system to challenge Beijing's failure to follow its own Basic Law.

A 'legal nightmare'

His strategy is likely to resemble a multistaged time bomb. Lee, one of the territory's most popular and trusted public figures, will first ask Hong Kong's judges to declare the interim congress illegal and prevent it from meeting.

If the body does meet, any law it passes will be subject to a similar charge of unconstitutionality. The same fate faces any judge of Hong Kong's highest court approved by the China-appointed legislature.

The result, Lee says, is likely to be a "legal nightmare" for a small territory that grew rich through British-inspired protections for free trade and freedom of thought.

Hong Kong's sound legal system and financial expertise have drawn investors the world over, and any loss of confidence in those traditions could spark a mass exodus of capital. It is also the source of most of China's foreign investment, so Hong Kong and Beijing have a common interest in protecting the territory's economic reputation.

Hong Kong's role as the economic capital of "Greater China" can be used to gain some leverage over Beijing's rule, says legislator Christine Loh. "It depends on how skillful we are in using that tool," she says. Ms. Loh, like Lee, says she intends to ride out the handover storm by "joining the opposition and waiting to regain power in 1998."

Tung Chee-hwa, recently selected to head Hong Kong's first post-colonial government by the same Beijing-appointed committee, has pledged to hold elections for a new congress within one year of the handover.

How the US feels

"The Provisional Legislature is a given," says a Western official. "The US just hopes it has as short a life span as possible."

"It's important not to let the prospects of turmoil in Hong Kong derail the Sino-American rapprochement," says Robert Ross, an associate at Harvard University.

President Clinton and Chinese President Jiang Zemin recently agreed to visit each other's capital within the next two years as part of an overall improvement in ties.

"A definite schedule for the Clinton-Jiang meetings should be set out before the takeover of Hong Kong," says Mr. Ross. "If China mismanages Hong Kong, there are going to be calls in Congress for sanctions against Beijing and a freezing of the summits."