Posted: May 13, 2011
In mid-April, Judge Joseph Fok ruled on a technical point concerning the Pearl River Delta bridge project that will span the estuary connecting Hong Kong in the east with the former Portuguese colony of Macau, and mainland points west. These jurisdictions can now be reached from Hong Kong only by sea or a round-about land route. The ruling held that environmental impact assessments had not been properly conducted for two Hong Kong sections of the Hong Kong-Zhuhai-Macau Bridge.* Construction on the mainland’s share of the project is already under way. Work at the Hong Kong end, which was to have begun last year, has been delayed by the judicial review and will be further delayed if the ruling is allowed to stand. The bridge, scheduled for completion in 2016, will be 31 miles long and cost over US$10 billion.
Rather than heed Judge Fok’s April 18th ruling, the Hong Kong government has decided to appeal, which will also mean further delay. But the appeal, if successful, will let everyone not only off this hook but future ones as well by removing the precedent that would have been set. This would require stricter comparative before-and-after environmental impact assessments than are now being followed here in practice. Mr. Justice Fok did not actually order such an assessment. He only ruled that the Environmental Protection Department wrongly O.K.’d the project because official technical guidelines for making such assessments, with specific reference to air quality in this case, had not been followed.
For non-Hong Kong readers, the issues sound familiar enough. Governments and developers everywhere cut corners to maximize returns while the neighbors do what they can to protect their surroundings. In Hong Kong, however, this case has many additional dimensions. Nor can a better example be found of the resulting disconnect (mentioned before: April 27 post) between the arguments of the two main (pro-government establishment and pro-democracy) protagonists. One side sees political motives at every turn; the other leaves them mostly implied and unspecified while pursuing a circuitous safer strategy — and missing yet another opportunity to confront the political future directly.
A BRIDGE TO CHINA
The project began as a gleam in the eye of Gordon Wu who is an engineer by training and builder of mega infrastructure projects by profession. He first proposed the idea of an intercity bridge, between Hong Kong and Macau, in the late 1970s, but his vision did not begin to generate interest until after Asia’s 1998 financial crisis. During the recession years that followed, Wu emerged as chief campaigner for the bridge, which he said would speed the cross border transit of cargo, tourists, and gamblers to Macau’s casinos. It was needed, he argued, to strengthen Hong Kong’s economic revival and keep ahead of the competition from the fast-developing Pearl River Delta region.
Sir Gordon was still using his British title in those days when he also became an outspoken critic of Hong Kong’s democracy movement activists. He had earlier been such a devotee of democracy that the English name he chose for his eldest son was Thomas Jefferson. But since the United States took hundreds of years to develop democracy, Sir Gordon said Hong Kong should only move “gradually” toward such a potentially dangerous political system. Besides heading his Hopewell Holdings conglomerate, he was, in the early 2000s, chairman of Hong Kong’s Port and Maritime Board, a member of the government’s Strategic Development Commission, and a member of Hong Kong’s delegation to the honorary national Chinese People’s Political Consultative Conference. Hong Kong government officials and fellow tycoons were initially cool to the proposal but he had many friends in Beijing and persisted in his cause.
Wu was at least right about on thing, namely, the rapid development of the Pearl River Delta. During the years it took to sell the bridge idea all around, design it, and arrange financing, Hong Kong’s transshipment role has inevitably been reduced by new mainland port facilities plus numerous road and rail links, new airports, and finally not one but two additional proposed mainland bridges to provide east-west connections across the Pearl River estuary.
Today, the main economic question is whether the bridge should have been built at all, especially given the costs and complications of two-way vehicular traffic that will not be complemented by a (non-polluting) rail link. But the time for second thoughts about white elephants has passed. Hong Kong must now finish what has become a prestige project and symbol of its integration with the mainland – stoking embers still smoldering after last year’s protest against the expensive high-speed railway project linking Hong Kong with points north. Hong Kong’s Transport and Housing Bureau aims to finish the bridge on time regardless, citing its “strategic value” in promoting “economic integration and development between Hong Kong and the mainland.”
THE JUDICIAL REVIEW
The bridge will surely be completed but Judge Fok’s intervention is important nonetheless. Hong Kong’s judicial system stands as its one remaining bulwark against encroaching mainland ways, jealously guarded by pan-democrats and a target for constant sniping by pro-Beijing partisans. They attack it as a “colonial” remnant, an image reinforced by the British-style wigs and courtly attire that the judiciary has insisted on retaining. The critics take their cue from mainland officials who have admonished Hong Kong’s judiciary to be more “supportive” of its executive. But everyone, including Beijing, understands that economic stability is essential for its strategic goals and Hong Kong’s independent judicial system is essential to maintain the rule-of-law environment here that international business confidence requires.
Pro-democracy activists are mindful of these considerations and in recent years have made much use of the judicial review mechanism on a number of contentious issues with political implications. Even so, its sponsors have gone out on something of a limb in this case and so has Judge Fok. The application for a judicial review was made by lawyers for Chu Yee-wah [Zhu Qihua], an elderly welfare recipient who suffers from heart trouble and diabetes. She lives near what will be the main access road to the bridge and contends that the project will affect her health. The court agreed to consider her application and being of modest means she qualified for legal aid as well.
With top legal talent to represent her, Ms. Chu has remained out of sight and did not appear in court. Her counsel also questioned the standards used in the original projection of future air quality but the judge rejected these arguments. Only the official failure to assess the bridge’s long-term impact in comparison with current baseline data was accepted in the court’s ruling. Champions of Hong Kong’s judiciary and those mindful of the pressures it faces nevertheless hailed Judge Fok for his courage and the judgment as a triumph for the rule of law. Such public interest cases rarely manage to throw a spanner in the works of anything as big and well-connected as the estuary bridge project.
This case is in effect the judicial equivalent of last year’s referendum campaign for universal suffrage elections and the Civic Party deserves credit for its activism on both counts. No politicians, parties, or individuals have spoken out as sponsors of Ms. Chu’s application but one of her lawyers is a Civic Party member and she is a volunteer participant in neighborhood Civic Party activities. After the ruling was handed down, party vice chairman Albert Lai said only that some party members along with other concerned professionals had “provided support to the applicant” (South China Morning Post, April 28). Besides hailing judicial independence, those who have welcomed the ruling all focus, as does Albert Lai, on its environmental impact. They deny any other motivation.
In contrast, pro-establishment critics tore into the judgment and immediately named the Civic Party as the “black hand behind-the-scenes” orchestrator. The only possible motivation, they say, is to delay completion of the bridge and “sabotage” Hong Kong’s deepening economic integration with the mainland (Wen Wei Po, April 20, May 6; Ta Kung Pao, May 4). They even uncovered a rare photo of Ms. Chu, looking hale and hardy, at a Civic Party street-corner fundraiser in her neighborhood (Ta Kung Pao, April 21).
Within days, the critics were outlining points for the government’s appeal brief. For example, the judicial review should not have been allowed in the first place since court rules impose a time limit of three months after the fact, whereas the application was made almost one year after environmental permits were issued in November 2009. Ms. Chu’s eligibility was also questionable since her health problems were evidently not related to present air quality, which was the main point of the ruling. Nor should the lack of such information have been an issue since that data is readily available from government monitoring stations in the locality. Perhaps other points on faulty future projections were valid but since Judge Fok rejected all those points, his focus on the lack of present baseline data was illogical (China Daily, April 28, May 5, 12).
The Civic Party issued a long five-point rebuttal (Hsin Pao-Hong Kong Economic Journal, May 9), but to no avail. Now the party stands accused among other things of using its legal expertise to agitate for Hong Kong’s political and economic independence from China (Wen Wei Po, May 10, 11). With arguments like these coming from pro-Beijing quarters, the Hong Kong government probably had no choice but to appeal. Otherwise, it could easily have complied with the ruling since Judge Fok provided the easiest way out by not directly challenging the government’s future air quality projections.
ANOTHER MISSED OPPORTUNITY
Still, the responses were predictable, so why did those concerned proceed with such a tenuous troublesome case? Former legislator Christine Loh inadvertently provided an answer at a recent forum held to discuss the overall Pearl River Delta integration plan (March 30 post). Since withdrawing from the front lines of political combat a decade ago, Loh has focused primarily on environmental issues. “We have no choice,” she said with reference to the inevitability of integration, but we can insist on doing it our way. She used the pending delta bridge judicial review as an example to explain what she meant: going through the Hong Kong courts to delay construction at the Hong Kong end with the aim of pressing the authorities to improve and impose Hong Kong environmental standards. She later said much the same thing, more circumspectly, in her newspaper column when she wrote that such “politically motivated” projects should be attentive to the highest environmental and public health standards (South China Morning Post, April 22, May 6).
The only problem with this logic is that it tiptoes around the issue that matters most: judicial independence. Pro-Beijing partisans understood the implications and proclaimed them immediately: pan-democrats fear national integration and will do anything to delay it. In response, pan-democrats protest that their only concern is environmental, which strictly speaking is a dodge. Their discretion is no longer avoiding confrontation but inviting it.
Local democrats are still confining themselves within the Hong Kong half of the “one country, two systems” formula. The Hong Kong way is the common law way of working bit by bit to accumulate precedents and entrench them in local practice until they become the accepted law of the land. But Hong Kong has no guarantee that such ways will survive once integration has been achieved because Hong Kong is moving into a national system that does not recognize them. The precedents are therefore necessary but they will not be sufficient. A wiser strategy for democrats would be to do what their opponents are doing and confront the issue of integration directly. Since democrats are now being openly challenged on the issue they might as well accept the challenge by stating their case for what it is: a demand for permanent protection from the dangers of mainland judicial practice that the growing pressures for integration anticipate.
*Link: CHU YEE WAH v. DIRECTOR OF ENVIRONMENTAL PROTECTION (18/04/2011, HCAL9/2010)