In Hong Kong, challenge to 'one country, two systems'

In the 19 months since the British departure, Hong Kong's relations with mainland China have been almost lullingly smooth.

A few flaps have arisen, but the Chinese leadership, up to and including President Jiang Zemin, has quickly and forthrightly defended Hong Kong's autonomy.

Now comes a crisis that cannot be easily dismissed. Ironically, it stems from a decision by Hong Kong's Final Court of Appeal that was hailed here as a landmark assertion of judicial independence under the "one country, two systems" agreed upon by China and Britain.

On Jan. 29, Hong Kong's top court held stuck down a law passed by the territory's China-appointed, now-defunct Provisional Legislature immediately after the July 1997 transfer of sovereignty. The law was meant to keep immigration into Hong Kong at manageable levels by requiring that China's migrants first obtain Chinese exit permits.

The case involved mainland children's right to live in Hong Kong and required an interpretation of the Basic Law, Hong Kong's constitution. One of the articles grants mainland children a right of abode if one parent is a Hong Kong resident.

The court's decision upholding the children's rights was widely unpopular. Although Hong Kong is a city made up of immigrants, most people here strongly oppose unrestricted migration.

But if the foreseen effect has been unpopular, many have supported the decision as a powerful symbol of Hong Kong's judicial independence. The case has also set in motion a clash between Hong Kong's British-inspired legal system and China's socialist rulers. A key element of Hong Kong's promised 50 years of high autonomy from China is its common law and the right of its courts to adjudicate its own laws without interference from Beijing, except in matters of foreign affairs and national defense.

But in 50 years of Communist rule, no court had challenged Beijing's acts as unconstitutional. A week after the ruling came ominous rumblings of discontent from Beijing. It seemed to Chinese legal scholars that the court had taken upon itself authority not only to invalidate Hong Kong laws, but also statutes passed by the National People's Congress, constitutionally China's supreme organ of power. "The court has the authority to examine whether any legislative acts of the NPC are consistent with the Basic Law," declared the justices of the appeals court.

NOT only had it asserted this right but, some argued, it had actually overturned at least one Chinese statute. In 1996, the national legislature had defined categories of mainlanders entitled to live in Hong Kong in a way that precluded those born out of wedlock. But in its ruling, the Hong Kong court granted these rights to illegitimate children.

Official disapproval came from Zhao Qizheng, a spokesman for the Chinese State Council, or cabinet. He called the ruling a mistake, saying the decision should be modified. "This is the beginning of a well-organized attack on the court," said Martin Lee, Hong Kong's Democratic Party chairman.

As the storm intensified, foreigners took notice. A US State Department official expressed "concern," and the British consulate general issued a rare statement, urging that China not undermine the independence of the territory's courts. Chief Executive Tung Chee-hwa dispatched Secretary for Justice Elsie Leung to Beijing to do some explaining and tried to reassure local residents. Problems were inevitable as "one country, two systems" was an "enterprise unprecedented in history," Mr. Tung said.

When Ms. Leung traveled to Beijing last week, an official from the premier's office told her the Hong Kong courts decision "must be rectified." Under the Basic Law, China's National People's Congress has the ultimate power to interpret the law. But the Chinese premier has no jurisdiction.

Yet even if the court did make a "mistake," it may be difficult to rectify without at least the appearance that Hong Kong is backing down under pressure from Beijing. Says legislator Margaret Ng, "then everyone would see that the courts have no authority."

The high court, in forcibly asserting its independence from Beijing, may have set in motion a train of events that might undermine that very independence.