OPPOSITION is building within a wide spectrum of forces in the territory over the proposal by the China-appointed Preliminary Working Committee to instal a provisional legislature after the change of sovereignty. Political parties and some legal experts say the idea of a transient legislature does not conform with the letter and spirit of the Sino-British Joint Declaration and the Basic Law. They have cast doubt on the insistence by the PWC political sub-group that a caretaker legislature is the only solution, warning that it would create more problems than it could solve and might damage the political apparatus. But reluctant supporters of the plan say the establishment of a provisional law-making assembly has become a political reality whether we like it or not. The best hope was to minimise the damage by shortening the legislature's duration and confining its powers to jobs that must be completed before the first full legislature was formed. Liu Yiu-chu, a maverick lawyer and local deputy in the Chinese National People's Congress, thinks the whole approach of the PWC is flawed. Only after it was found to be impossible to constitute the first legislature within three to six months after the changeover should the idea of a caretaker legislature be seriously considered, she said. 'It is wrong to give up other options and immediately propose forming a caretaker legislature simply because we encounter some problems,' Ms Liu said. 'This is not responsible.' Formerly a PWC member, Ms Liu accused the working panel of failing to look conscientiously for solutions. The current PWC proposal only proved that there was an attitude that the longer a non-elected legislature existed, the better, she claimed. 'It is using an appointment system to replace the first SAR legislature and lots of arguments are put forward to hide such a political intention,' she said. 'However, these arguments are not convincing.' To her, the current proposal is ridiculous. If the first SAR legislature could be formed as soon as possible, it would minimise the shock to Hong Kong, she said. 'We still have to strive for a smooth transition even though Britain does not co-operate . . . we should not be so emotional as to take tit-for-tat action now that Britain has rocked the boat,' Ms Liu said. 'China is a great country. It has to take a responsible attitude to care for Hong Kong.' Independent legislator Andrew Wong Wang-fat also opposed the idea. 'They set the problem for themselves,' he said. 'However, when there is a problem, when there's no solution to the problem or the solution is full of paradoxes, one has to ask whether the problem is set wrongly. 'I think the only solution is to redefine the problem.' The liberal-minded academic maintains that Hong Kong people should not 'bow to the reality' that a provisional legislature has become inevitable: 'What is the reality? Today's reality is different from tomorrow's. Don't throw the towel in now. 'I'm neither an idealist nor a defeatist. I'm just talking reason. There's no reason why we cannot have a through train.' Mainland officials and the PWC are adamant that a provisional legislature is the best of four possible options. The other three are giving the legislative powers to the Chief Executive, the Preparatory Committee or the National People's Congress. An 'authoritative figure' in the Hong Kong and Macau Affairs Office has said: 'We can never allow the NPC to make laws for Hong Kong. If we set such a precedent, how can we say there is a high degree of autonomy for Hong Kong? How can the people of Hong Kong still believe in the Basic Law?' According to Ms Liu, the idea of a provisional legislature was already tantamount to burning the Basic Law. 'It's a total waste of time,' she said. 'It creates more problems and complexities.' Such a proposal would damage the credibility of the first SAR government. The legal basis for such a legislature was equal to zero, she said, adding that it destroyed 'the credibility and authority of the Basic Law'. 'Who will have faith in the Basic Law in the future?' Hong Kong people would not be convinced that the central government and the NPC Standing Committee were serious about full implementation of the Basic Law. 'It is as if as soon as circumstances change, you then create something new to the Basic Law, thus shaking the grand principle of the mini-constitution,' she said. Professor Albert Chen Hung-yee of the University of Hong Kong believes, however, it is more important to have a legislature in place to give legal basis to government policies and action, because Hong Kong is known for its rule of law. 'Strictly speaking, it [a provisional legislature] is not within the Joint Declaration and the Basic Law,' he said. 'But there's no other better alternative.' Apart from the derailing of the through train, it could no longer be assumed that existing laws not able to be applied after 1997 would be dealt with through localisation and adaptation. 'For instance, a set of local laws to give effect to Article 23 on treason activities will have to be enacted immediately after July 1, 1997,' said Professor Chen, head of the Department of Law. 'There is probably a real need for a provisional legislature.' Moreover, Professor Chen warned that the setting up of a provisional legislature was bound to have an enormous impact on all sectors of the society. 'The first legislature plays an important role on law-making under the Basic Law,' he said. 'If it is allowed to be replaced by the provisional legislature it is a fundamental deviation of the Basic Law.' PWC political sub-group co-convenor Leung Chun-ying earlier listed a set of urgent tasks that justified the need for a provisional legislature. These include passing laws on treason, national laws applicable to the SAR, budget and tax matters as well as the appointment of the chief justice of the Court of Final Appeal and Supreme Court. Head of a pro-China think-tank, Shiu Sin-por is confident that realism will prevail and the idea of a provisional legislature will be accepted. 'There will be a lot of [opposition] noises over the idea,' he said. 'But when people sit down and think, they will come to the same conclusion that a provisional legislature is the only solution.' Head of the One Country Two Systems Economic Research Centre, Mr Shiu said the business community would find the solution 'a blessing in disguise'. He said the 1995 Legco would probably be dominated by the Democratic Party, which would largely oppose the administration. 'Business will find it a blessing to have a legislature which is supportive of the administration,' he said. 'It might be a conservative one, but it will provide a breathing space and a relatively stable government.' Business circles would prefer a more balanced legislature than a lop-sided one dominated by the Democrats. Mr Shiu also believes it would be unrealistic to confine the powers of the provisional legislature, however good that intention may be. 'How can you restrict the powers of the legislature for a period of 12 to 18 months? Hong Kong will finish if the legislature is not allowed to change laws,' said Mr Shiu, also a Hong Kong affairs adviser. The 60 provisional legislators would not be all yes-men, although it was important that the 400-member Selection Committee, which would be empowered to 'elect' the provisional body, should be representative, he said. Mr Wong agreed that it would be unrealistic to curb the powers of the caretaker legislature, even though he does not agree with its formation. More significantly, he said, a legislature did not just exist to legislate, it also had the role of checking on the government. 'A legislature's primary function is to check on the government,' he said. 'If you don't grant it the full powers, how can it function?' Mr Wong also believed that it was unrealistic for the provisional legislature to deal with the list of laws that the PWC said needed urgent enactment in 1997. Enactment of laws was a complicated process, he said. The legislature's deliberation and passage of bills took time. 'The danger is that the legislature will become a rubber stamp,' he said. The whole idea of a provisional legislature would set a dangerous precedent and would lack credibility. Mr Wong said the best option was still to allow the through train arrangements. To solve the sovereignty question, legislators would only need to swear allegiance to the new sovereign. Then they could straddle 1997. If China insisted that the through train was out of the question, Mr Wong believed that a better alternative was to draft the post-1997 electoral laws, secure the approval of the NPC, and include them as additional annexes to the Basic Law. The former chairman of the Legco constitutional affairs panel said that it would be better for China to be frank about this and get the NPC to legislate. Once these electoral arrangements became local legislation they could be deleted from the Basic Law and become part of the law of Hong Kong.
