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Provisional Legislature: A Creation of Political Adversity

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 this year.

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 Legislature.

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 of transition.

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 opponents.

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 experts.

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 we can.

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.

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