LAW

Preparing for 1997

A Canadian helps draft Hong Kong’s future

JOHN KEATING November 20 1989
LAW

Preparing for 1997

A Canadian helps draft Hong Kong’s future

JOHN KEATING November 20 1989

Preparing for 1997

LAW

A Canadian helps draft Hong Kong’s future

Ever since Britain formally agreed five years ago to return Hong Kong to Communist Chinese control in 1997, anxiety among the inhabitants of the Crown colony over their future has grown steadily. The June 4 massacre in Beijing’s Tiananmen Square, in which hundreds of Chinese students died during a prodemocracy demonstration, increased the colony’s concerns. In an effort to encourage hope for the future, Hong Kong Gov. David Wilson in October said that bureaucrats would begin drawing up a bill of rights— in the hope that Beijing would respect such a document when the transition to Chinese rule begins. Because the British colony off the coast of China lacked constitutional experts of its own, Wilson’s staff looked overseas. Barry Strayer, a Federal Court of Canada judge who is currently on a three-month posting as consultant to the colony’s legal department, was enlisted to help with the task.

To Hong Kong legal experts, the 57-year-old Strayer seemed to be an almost perfect candidate for the job. A native of Moose Jaw, Sask., Strayer has almost 22 years of experience in Canadian constitutional affairs. As assistant deputy minister of justice in the Liberal government of Prime Minister Pierre Trudeau between 1974 and 1983, he played a leading role in drafting the 1982 Canadian Charter of Rights and Freedoms. In Hong Kong, Strayer faces a constitutional challenge just as complex as the ones he confronted in Canada. “I suppose I’m recognized in the Commonwealth as having expertise in this area,” said Strayer last week in his office at the government law library overlooking Hong Kong’s crowded Victoria Harbor. “I’ll have some input on the problems that might be avoided bringing in a bill of rights.”

Concern about the preservation of human rights in Hong Kong first surfaced in 1984, when British Prime Minister Margaret Thatcher and Chinese leader Deng Xiaoping agreed to transfer Britain’s control over Hong Kong in 1997—99 years after Britain first leased the colony from China’s rulers. The declaration stipulated that rights currently enjoyed under British rule by the colony’s 98-percent Chinese population would be preserved after Beijing’s takeover.

But because the Sino-British declaration did not carry the force of law, some legal observers in Hong Kong have expressed concern that the sweeping powers possessed by the Hong Kong government—including a public-order ordinance that can be used arbitrarily to break up political demonstrations—could be abused by Chinese officials when Beijing takes control of Hong Kong’s affairs. Indeed, Hong Kong police

used those powers in September to end an anticommunist demonstration outside an official banquet marking the 40th anniversary of the People’s Republic of China.

The Canadian who is helping to address Hong Kong’s problems was educated at the University of Saskatchewan, England’s Oxford University and Harvard University in Cambridge, Mass. During a six-year stint teaching law at the University of Saskatchewan, Strayer served as a consultant in constitutional law to Trudeau when he was federal justice minister in 1967. Then, in 1968, Strayer was appointed director of the constitutional-review section of Ottawa’s Privy Council Office. Named director of the constitutional-law section of the federal justice department in 1971, Strayer, as assistant deputy minister of justice, played a leading role in drafting the 1982

Canadian Charter of Rights and Freedoms.

Later, as a Federal Court judge in Ottawa, Strayer presided over a number of cases involving arguments based on the Canadian charter. Strayer’s Hong Kong posting is not his first overseas assignment. In 1979, he helped officials in the tiny Indian Ocean island-nation of Seychelles to draft a new constitution. Said Paul Tellier, the influential Clerk of the Privy Council: “Barry has been, most of his life, interested in constitutional law and public law. He is highly qualified.”

In Hong Kong, part of Strayer’s job will be to advise government officials on how the colony’s existing laws will have to change to conform with the new bill of rights. Some observers speculate that the public-order law will be changed. Strayer also plans to suggest a timetable for implementation of various parts of the bill of rights to allow a breathing space in which laws can be adjusted.

Some critics have questioned whether a Hong Kong bill of rights guaranteeing such fundamental rights as freedom of speech, freedom of assembly and freedom of the press will help to prevent human-rights abuses following the Chinese takeover. James Allan, a Canadian lawyer and law lecturer at Hong Kong Polytechnic, said that he doubts that such a document will carry much weight with Beijing. Canada’s charter works, said Allen, because rival powers—the federal government and the provinces—must agree on amendments. But Beijing will not be a party to Hong Kong’s bill of rights, Allan said. As well, Allan noted that because Hong Kong does not have a written constitution, there is no way of entrenching the proposed bill of rights. Said Allan: “China can come in tomorrow and say, ‘We don’t want that.’ ”

Still, Allan acknowledged that a bill of rights could help to bring international pressure to bear on China to honor human rights in Hong Kong. For his part, Strayer admitted that designing a bill of rights for Hong Kong would not be easy. Declared Strayer: “We’re fitting a bill of rights into a system not based on electoral politics.” At the same time, Strayer said that the proposed bill could help in the long run to protect Hong Kong’s citizens by making the issue of human rights more prominent to legislators and the public. Said Strayer: “It will help to strike a balance between the greater good and the interests of the individual.”

In January, Strayer plans to return to Ottawa to resume his seat on the federal bench. Meanwhile, he said that he and his wife, Eleanor, are enjoying the energy and vibrance of Hong Kong, with its exotic crowded streets and narrow alleyways. Still, after a busy day, Strayer said that he enjoys the tranquillity of his apartment on Hong Kong’s relatively quiet south side. Said Strayer: “They take very good care of me here.” Clearly, Hong Kong government officials are hoping that, in return, Strayer will help to draw up a document that will bring a measure of security to the colony’s uncertain future.

JOHN KEATING in Hong Kong