Lu Ping and the Preparatory Committee certainly scored a few points in last weekend's consultation exercise. By allowing the bar to state its stance against the provisional legislative council, they managed to appear liberal. Their much harsher treatment of the Teachers' Union and the Hong Kong Federation of Students could then be passed off as simply a reaction to 'confrontation'. However, the protestors and demonstrators have a point. They did not trust Mr Lu or the Preparatory Committee. They are convinced the so-called consultation is just a show and that Beijing has not really listened and will never do so. They refuse to be taken in, and they believe the only thing to do is for Beijing to scrap the provincial legislature. It is not that they ignore the question of legality of the provisional legislature. Indeed, they strongly believe that it is unconstitutional. But they highlight the crucial point, which is that the legislature is being set up for only one purpose and that is to shut out voices against Beijing - voices of people who are prepared to stand up to Beijing - from the SAR legislature, to form a new provisional legislature which contains only people willing to agree with whatever Beijing proposes. The fear is that, once that happens, draconian laws will be passed on sedition, treason and the like to increase the Government's power over the individual, while election laws will be changed to reverse the progress of democracy, making a fair, open and widely representative legislature practically beyond hope. This would mean permanently shutting out the democrats and any groups or parties opposing Beijing. Further, laws protecting the individual's rights and freedoms, such as the Bill of Rights, will be severely restricted or even removed. There is no lack of examples of Beijing's determination to shut out opposition, however mild or unthreatening. Recent examples include the disqualification of Frederick Fung Kin-kee from the legislature on the basis that he voted against the proposal for its establishment. Another example is the threat that civil servants who have opposed the legislature may not be able to keep their posts in the new SAR. One more example is in the recent consultation exercise, the withdrawal of the invitation to the Professional Teachers' Union on the grounds of their being 'confrontational' and their opposition to the provisional legislature. But more fundamentally, the inclination to shut out opposing voices is not only illustrated by the treatment of some individual or body. It is even more deliberate in the system adopted. Take the recent invitation to the consultation exercise; the letter of invitation makes accepting the establishment of a provisional legislature expressly or by implication a common ground between the Preparatory Committee and those accepting the invitation. Although the Preparatory Committee thought better of it in the end, the original intention was transparent. The example will move into a new field: that of the Selection Committee. It has been mooted that only those who manifest themselves in favour of the provisional legislature can serve on it. Clearly, the provisional legislature is being used as a test of loyalty - being prepared to accept Beijing's version of anything. It is argued that by decision of the Preparatory Committee, the Selection Committee has to select the chief executive for nomination and to elect the provisional legislature, if one is not prepared to do one of the jobs, one should not be sitting on the committee. The fact is, the Selection Committee was never intended to elect the first legislature or the Preparatory Committee. On one view, the provisional legislature is causing a number of difficulties. And it is not only for now. Given its genesis is of such a legally arguable start, its future decisions - such as the laws it will pass - will also be legally challengeable. The status of judges appointed under such laws may also be open to challenge. This will clearly be an unacceptable state of affairs in Hong Kong. So why insist on the provisional legislature? The often repeated answer is that the legal arguments against its constitutionality are merely technical. At the end of the day, not only is the interpretation of the Basic Law entirely within the power of the Standing Committee of the National People's Congress, but the Basic Law itself can be amended. All this will be simple and straightforward, and not worth arguing. If so, it becomes all the more dubious: why doesn't Beijing do this? Why hasn't Beijing already done this? The answer could well be that it is not that simple or straightforward. Or it may be that the justification is deliberately kept obscure, so that the acceptance of the provisional legislature may remain an effective test for keeping out the opposition. Another often repeated reason given for the provisional legislature is that it is said to be 'necessary'. Since Governor Chris Patten's reform package, in this view, contravenes the Basic Law, there can be no through train, and there being no through train, China has to devise a whole new provisional legislature to prevent a 'legislative vacuum'. This is a rough and ready argument. For something as serious and fundamental as the constitutional lawfulness of the legislature of the SAR, it has to be questioned much more closely. For instance, what exactly does paragraph six of the 1990 NPC Decision say about the through train? One interpretation is that it contains a conditional provision of the through train. Namely, provided the composition of the last Hong Kong Legislative Council is in conformity with the Basic Law, then there shall be a through train. When there is a through train, a Legco member may stay on provided only that he satisfies the three conditions stipulated - upholds the Basic Law, pledges allegiance to the SAR and meets the requirement of the Basic Law, then he shall ride beyond 1997 in that through train. If so, then the question is how the composition of Legco is not in conformity with the Basic Law. While abuse has been heaped upon the Governor, few objective arguments have been advanced on how it is supposed to have contravened, and which part of it is supposed to have contravened. If only one part of it has contravened, why is it necessary to dismantle the whole? If Beijing's argument has been that the new parts introduced by the Governor, namely, the nine new functional constituencies and the 10 seats by the election committee contravene the Basic Law, and therefore they cannot be kept, it might have aroused less suspicion and dismay. Or, the argument may be that the present Hong Kong election law contravenes the Basic Law, and therefore no election can be held for the first Legislative Council until there are some valid laws. If so, then the only 'necessary' task of the provisional legislature is to pass such laws, the research and study of which might have begun anytime since 1993. There would be no justification for a legislative council to do all sorts of other things, none of which of a provisional nature. Thus, it is not a matter of technicality - though I would not agree that conformity to law is just technicality - but a vital and practical matter which forms the basis of unease and concern. Given the above, Beijing's determination to go through with the provisional legislature in spirit of its unconstitutionality is all too clearly seen as having nothing to do with legal vacuum or 'necessity'. It is just a device to oust opposing views.