Casting light on powers of shadow legislature

PUBLISHED : Tuesday, 11 June, 1996, 12:00am
UPDATED : Tuesday, 11 June, 1996, 12:00am

Much has been said over the past couple of years about the legality and necessity, or the lack of both, of China's appointment of a provisional legislature for its future Hong Kong SAR.

But little has been made public about the powers the 60-member interim legislature will have. There is bound to be confusion about the jurisdiction of the transitional law-making body when its official bearers are named in about three months. After all, the unpopular body is not condoned in either the Basic Law or the 1984 Sino-British Joint Declaration.

The biggest faction in the current Legislative Council, the Democratic Party, has pledged not to serve the assembly, even if invited. Several members of the party will head for Beijing next month in a last bid to convince China to abandon its plan.

Others however have already accepted the provisional legislative as a fait accompli.

During the 1995 election campaign, some candidates of the pro-Beijing Democratic Alliance for the Betterment of Hong Kong had also pledged to boycott it.

But nine months later, reporters on the Legco beat observed leaders of the party had already back-pedalled on the issue and might eventually be happy to be short-listed.

China's first move to legitimise its plan for a stop-gap lawmaking body for the Special Administrative Region dates back to August 31, 1994. The Standing Committee of the National People's Congress declared the Preparatory Committee should 'organise and establish the first Legislative Council of the Region'.

The committee resolved this March to set up the provisional legislature. A 400-strong Selection Committee, originally to select the first chief executive for the SAR, has also been given the job of picking 60 nominees to the assembly.

The Preparatory Committee's deliberations over the thorny issue have been kept confidential, and no official announcement has been made on its precise terms of reference.

A hazy picture can be pieced together from what individual Chinese officials and committee members have divulged over the past two years.

It has been established, for example, that the provisional legislature is to hammer out a new set of electoral rules within a year of the formation of the SAR. This means the transitional council should not last beyond July 1, 1998.

Wen Wei Po newspaper last year summarised the duties of the legislature into two key areas. First, it is meant to handle the law-making issues arising from the transfer of sovereign powers. Second, the assembly should tackle legal matters related to a smooth transition in 1997. Later press reports have elaborated.

According to a story in the now defunct Daily Express the legislature would be responsible for overseeing the enforcement of national laws applicable to the SAR and making, changing and repealing laws for Hong Kong.

It would also approve the Government's budget and debate the policy address to be delivered by the first chief executive.

The legislature would also monitor, question and debate the administration's performance and other matters of public interest.

Ming Pao a few weeks later published a very different list, which suggested the legislature would be given a mandate to define permanent residence requirements and the criteria for issuing SAR passports.

It would also accept the appointment of judges, including those for the Court of Appeal, and draw up rules for electing the first proper legislative assembly.

Ming Pao's legislature also has powers to define the influence and membership of municipal councils and district boards and resolve land lease problems after next June.

Critics are eager to trim the powers of the provisional legislature, which will not be democratically elected.

They are worried that even if it is 'provisional', its laws will be there to stay.

The legal sub-group of the Preparatory Committee, for instance, has reportedly spotted at least six recent legal changes stemming from the Bill of Rights, which it denounced as part of a British plot to undermine the authority of the future SAR.

The provisional legislature will have to do the dirty job of repealing the revisions. Voters would not be given a say in the controversy, as legislators will not have to seek election.

Some are worried the more the provisional legislature legislates, the more difficult it will be for future elected assemblies to undo its damage.

On the other hand, there are also concerns that if the government machine is not under adequate supervision, the hands of the interim legislature will be tied.

During the 1994-95 legislative session alone, councillors handled more than 1,350 new cases seeking redress through Legco's ward office. This means councillors handle an average of about four complaints each day about government policies and procedures.

At present, they can also file questions and initiate debates on any issue of concerns. It will, of course, be a loss to members of the public, if this monitoring function of the assembly is taken away from the interim legislature.

Important as it is, this redress function of Legco does not really tally with the concept of a provisional legislature set up to deal with contingencies and fill any legal vacuum.

It remains to be seen whether the provisional legislators will be charged with such mundane duties as receiving complaints.

Some Government policy-makers, as well as individual senior executives of utilities, are already taking some relief from the imminent arrival of the provisional legislature.

Unlike the present elected assembly, they surmise, the interim legislature is bound to be bogged down by immediate political issues and is unlikely to have time to ask officials and corporate managers to explain lesser policies and justify price hikes.

Although none of them is prepared to admit it, some regular visitors to Legco are expecting to have an easy ride for at least a year under the reign of the provisional legislature.