Laws must be made now for the SAR

PUBLISHED : Tuesday, 22 April, 1997, 12:00am
UPDATED : Tuesday, 22 April, 1997, 12:00am

Some laws of the Hong Kong Special Administrative Region have to come into force as soon as the transfer of government takes place.

These laws include the complicated legislation that determines who can have the right of abode and the simple one that makes July 1 a public holiday.

These laws have to be made before the handover.

Emigrants want to know with certainty whether June 30 will be a deadline for them to return and settle in the territory as permanent residents.

They would not want to be told they should look for the answer in an ordinance that will be passed some time after that date.

It would be equally ridiculous for the SAR legislature to meet on July 3 and pass a law telling the public that the two preceding days should have been a holiday.

The Sino-British Joint Declaration provides that the laws of the SAR 'shall be the Basic Law, and the laws previously in force in Hong Kong and laws enacted by the Hong Kong SAR legislature'.

The agreement does not authorise the British administration to make laws for the SAR which cannot be enforced before the handover.

Any SAR law that does not belong to the totality of laws previously in force in Hong Kong should only be enacted by the SAR legislature.

The law on the right of abode in the SAR cannot be a law previously in force in Hong Kong.

Neither is the law that creates two extra holidays following the handover.

These laws cannot be enacted by the present Legislative Council.

It has been argued that the Hong Kong Court of Final Appeal Ordinance provides a precedent for the pre-handover Legislative Council to make laws for the SAR.

It is true the ordinance will not come into operation until the SAR is established and China did not raise any objection when it was passed by the Legislative Council in 1995.

This does not mean, however, that China agrees the present administration has the power to legislate for the SAR.

The ordinance says, in section 1(2), that it 'shall not come into operation on or before 30 June 1997 and the following day shall be the day for coming into operation'.

The same subsection also says that the ordinance 'shall be amended as necessary to ensure that it is in full conformity with the Basic Law'.

It is easy to see what the necessary amendments are. Some provisions in the ordinance look absurd.

For example, section four says when questions of fact concerning acts of state arise in the adjudication of cases, the Court of Final Appeal should obtain a certificate from the governor and before issuing such a certificate the governor should obtain a certifying document from the government of the United Kingdom.

There will be no governor when the court starts functioning and it will certainly not be the British Government that instructs the court on questions of fact concerning the acts of state.

The British Government and the governor appear in the ordinance only as stand-ins for Beijing and the Chief Executive of the SAR because the present administration cannot make a law that prescribes relations between the SAR and China.

Before the ordinance comes into operation on July 1, necessary amendments have to be made to bring it in line with the Basic Law.

These amendments are of such a nature that they cannot be made by the legislature of the British administration.

The case of the Court of Final Appeal Ordinance shows clearly that some institution other than the present Legislative Council must legislate for the SAR before the handover.