The Basic Law provides that a committee for the Basic Law is to be set up under the Standing Committee of the National People's Congress with the specific task of studying questions arising from the implementation of the Basic Law and to submit its views to the Standing Committee. The committee is to be set up when the Basic Law 'is put into effect' - that is, on July 1, 1997. It will play an important role because Article 168 of the Basic Law requires that the Standing Committee 'shall consult' the committee for the Basic Law 'before giving an interpretation' of the post-1997 constitution. In the past, the drafters of the Basic Law proposed that the committee for the Basic Law should have 12 members serving five-year terms. Half of the members should be from the mainland and the rest from Hong Kong. It was proposed that the mainland members should be appointed by the Standing Committee. As for the Hong Kong members, it was suggested that the chief executive, the president of the Hong Kong legislature and the chief justice of the Court of Final Appeal should nominate members to the Standing Committee for appointment. As for the criteria for appointment, the Preliminary Working Committee (PWC) recommended that members of the committee for the Basic Law should 'uphold the policy of one country, two systems; uphold and be familiar with the Basic Law; and understand Hong Kong's situation'. These criteria are vague and subjective. No doubt the Preparatory Committee will get round to looking at the formation of the committee for the Basic Law. Since China's first sovereign act will be to dismantle the existing Legislative Council, it seems that the first batch of members of the committee for the Basic Law - if the PWC's proposal is to be followed - will be nominated by the chief executive, the chief justice (whoever that may be) and a provisional legislator who would act as the provisional body's president. It is crucial that the committee for the Basic Law will have Hong Kong's best legal minds since they will be advising mainland members and the Standing Committee on the common law system. The basis of the mainland and Hong Kong legal systems are very different in terms of both their underlying values and procedures. If China wants the Hong Kong system to be maintained, then it must ensure that it will be advised by local legal experts who command Hong Kong's respect, and who have a distinguished reputation among the international legal fraternity. Hong Kong is used to legal reasoning which might be inconvenient in political terms for those in power. This is what respect for the rule of law is about. The Hong Kong system will be debased if the committee for the Basic Law becomes a body which puts politics before law. This way of operation will be quite different from what Chinese legal experts are used to. In China, policy is more important than law. The law is often used to support and justify political ends. Since it will be the Standing Committee - a political organ dominated by the Chinese Communist Party - which will be the final interpreter of the Basic Law, this is already a major departure from the common law tradition where adjudication is left to an independent judiciary. Thus, even more so, China must be particularly sensitive to ensure that the Standing Committee gets the clearest and best legal advice from the committee for the Basic Law. The current Bar Council chair, Gladys Li, says she intends to step down next year. Ms Li is exactly the sort of person who should be appointed to the Committee for the Basic Law.
