The "Provisional Legislative Council"
China has stated that it intends to establish a "Provisional Legislative Council" to legislate for Hong Kong. It has also made "loyalty to the Provisional Legislative Council" a loyalty test for members of the Preparatory Committee, which has been set up, as provided for in the Basic Law, to prescribe the method for forming the first Government and the first Legislative Council of the Hong Kong Special Administrative Region. The only member of the Preparatory Committee to vote against the plan for a Provisional Legislative Council was immediately told that he could not play a part in the further deliberations of the Preparatory Committee on the subject.
There is nothing said about a Provisional Legislative Council either in the Sino-British Joint Declaration on the Future of Hong Kong, or in the Basic Law. The Basic Law will be Hong Kong's constitution from 1 July 1997. Other laws must therefore be in conformity with it (see Articles 8 and 11 of the Basic Law).
Article 66 of the Basic Law states that "the Legislative Council of the Hong Kong Special Administrative Region shall be the legislature of the Region." There is no reference anywhere in the Basic Law to a "Provisional Legislative Council." It follows that a "Provisional Legislative Council" can only pass valid laws if it can be described in legal terms as being "the Legislative Council" within the meaning of Article 66. If it is not "the Legislative Council" within the meaning of Article 66, any laws which it claimed to pass would have no legal force and citizens would be under no obligation to take any notice of them. Such purported laws would be a nullity.
Other parts of the Basic Law lay down detailed provisions about the Legislative Council of the Special Administrative Region ("the SAR"). Article 67 deals with who is eligible for membership of the Legislative Council. Article 68 states that the Legislative Council shall be constituted by election. Annex 2 sets out the method for forming the Legislative Council. It provides that for its first term the Legislative Council shall be formed in accordance with the "Decision of the National People's Congress on the Method for the formation of the First Government and the First Legislative Council of the Hong Kong Special Administrative Region" dated 4 April 1990. That Decision (which is annexed to many copies of the Basic Law on sale in Hong Kong) states that "the first Legislative Council of the Hong Kong Special Administrative Region shall be composed of 60 members, with 20 members returned by geographical constituencies through direct elections, 10 members returned by an election committee, and 30 members returned by functional constituencies." It also states that "if the composition of the Hong Kong Legislative Council before the establishment of the Hong Kong Special Administrative Region is in conformity with the provisions of that Decision and of the Basic Law, those of its members who uphold the Basic Law and pledg e allegiance to the SAR and who meet the requirements of the Basic Law, may upon confirmation by the Preparatory Committee, become members of the first Legislative Council of the Region. It also states that the term of the first SAR Legislative Council shall be 2 years.
Only a Legislative Council which meets all these conditions can be the Legislative Council of Hong Kong and pass laws to govern Hong Kong. So far there has been no suggestion that the Provisional Legislative council will be constituted by elections in the manner specified in the Basic Law. If such a "Provisional Legislative Council", which does not meet the conditions in the Basic Law restricts its activities to preliminary plans, such as agreeing the terms of draft laws to be put before a properly constituted Legislative Council at a later date, its activities might not be illegal, provided that it does not attempt to usurp the functions of the existing Hong Kong Legislative Council before 30 June 1997. However if it attempts to pass laws it will be acting illegally, and lawyers advising their clients will have no proper professional alternative but to advise them that the laws are of no effect.