|In the last issue of this journal,
I gave an 'insider' view of the Selection Committee. Following
my successful election to the Provisional Legislature,
it is now opportune for me to follow up with an article
about this unique Legislature.
The Provisional Legislature has been criticised as
illegal, undesirable and without a clear legal basis.
The same critics, however, probably realise that the
formation of the Provisional Legislature is unavoidable
and that in reality, it will be the only law-making
body of the Hong Kong Special Administrative Region
immediately after the change of sovereignty in July
Almost every accountant I discussed the issue with
advised me to take a pragmatic view. As your elected
representative, the most important task at hand is to
work with the government of the day, from within the
establishment and not outside it. Political views aside,
it is simply ineffective for the profession's political
voice only to be heard chanting rhetoric outside the
LegCo building. In order to continue serving the interests
of the profession and to help contribute to a smooth
transition, I offered, if elected, to continue acting
as the HKSA Council's bridge to the Provisional Legislature
and the government. I then went on to campaign independently
to become a member of the Provisional Legislature. As
it turned out, I am the only accountant who was elected
to the new Legislature. I have now placed myself in
a position to honour what I pledged in the 1995 election
and to perform what I believe to be my moral duty: to
serve you until the next proper election when you can
again choose your own LegCo representative.
The following is a systematic and concise analysis
of the issues relating to the establishment of the Provisional
The sudden move by Mr Patten to speed up the pace of
political reform in 1992 not only infuriated China but
also aroused its strong suspicions about Britain's motives.
It might well be the case that all Britain wanted to
achieve was to strengthen Hong Kong's institutions of
democracy before the handover in order to dampen both
local and international criticism. However, the diplomatically
reckless way in which the whole matter was managed probably
resulted in handing China all the right cards to play.
By establishing the present LegCo via a political reform
package that was not agreed to by China, Britain gave
the Chinese Government the indisputable right to establish
its own Legislature and in the process, enabled it to
tighten its grip on Hong Kong during the crucial period
The Provisional Legislature is clearly a creation of
political adversity. It can hardly be described by anyone
as politically desirable. However, the justification
for its very existence is and will remain a matter of
a difference of political opinion. Some choose to oppose
the Provisional Legislature on grounds of illegality.
Technically speaking, they do have a point, as I will
explain later. The likely truth is that the same critics
would undoubtedly find other reasons to attack the new
body even if the Provisional Legislature was found to
be legal. Nevertheless, until the Chinese Government
has successfully shored up its legal position, the lack
of a clearly specific legal basis for the Provisional
Legislature remains a convenient and obvious weakness
that has invited an onslaught of criticism by its many
The National People's Congress (NPC) passed a resolution
on 31 August 1994 following the breakdown of talks with
Britain to terminate the current Legislature on 30 June
1997. This resolution rejected the so called 'through-train'
arrangement as originally envisaged by the Sino-British
Agreement and the Basic Law. In the light of such significant
changes, one would normally expect the NPC to speak
out clearly and in some detail about alternative arrangements
to replace LegCo. However, probably due to the suddenness
of the change and the lack of time to formulate an appropriate
alternative arrangement, the NPC only resolved to form
a Preparatory Committee to deal with 'related matters'
without further elaboration.
Since the weakness in the legal basis of the Provisional
Legislature has been exposed, several plausible solutions
have emerged in public forums. The solutions suggested
include that the NPC: pass a supplementary resolution
pronounce an authoritative judicial declaration recognise
the Provisional Legislature as the first legislature
and amend the Basic Law, or endorse a detailed work
report from the Preparatory Committee on how it has
dealt with the 'related matters' and its interpretation
of the legal basis of the Provisional Legislature, thereby
indirectly supplementing its original resolution.
My personal view is that a sequential combination of
(iv), (i) and then (iii) listed above is the preferred
solution and one which would put the matter completely
beyond doubt. Despite the obvious urgency of the matter
the exact wording must be worked out carefully by legal
The Provisional Legislature has already begun its work.
It is unfortunate that we have to take our first few
steps with a less than rock solid legal foundation.
But with much work ahead and time not our side, we must
press on to fulfill our historic role in the best way
I believe that it is now incumbent on the Provisional
Legislature to confine its work to a clearly laid down
list of essential tasks, to work in a transparent and
orderly fashion closely resembling the current LegCo,
and to finish the tasks at hand as soon as possible
to make way for the first fully elected legislature.
I am confident that this is a natural course for the
Provisional Legislature to follow given that the majority
(33) of members are incumbent LegCo members who have
established themselves in open election and that many
others are experienced former members. Whilst we must
learn to live with differing political opinions, at
the end of the day, it will be by the final results
of our work that history will seek to judge us.