Provisional Legislature - Legal and Constitutional Difficulties
The criticism of the position adopted by those members of the Legislative Council who have declared that they will not sit in a provisional legislature constituted in the manner proposed by the Preparatory Committee is misconceived.
As I see it, theirs is the only constitutionally correct and lawful position for Legislative Council members to take.
Until midnight, June 30, 1997, the only sovereign in the Crown Colony of Hong Kong is her Majesty the Queen.
The only institutions with legislative powers for Hong Kong up to that date are therefore the Queen in Parliament, Her Majesty in Council and the Governor with the advice and consent of the Legislative Council in Hong Kong.
To serve in the provisional legislative whilst remaining a member of the Legislative Council is to acknowledge that there is more than one sovereign before June 30, 1997. Those who have said that they are not fence-sitters should demonstrate that they are not by making a choice.
One of the prime arguments used to justify a provisional legislature is that without it, there will be no law-making body at the time when the Hong Kong Special Administrative Region (the HKSAR) is established because of the decision of the National People's Congress at the end of August, 1994 that the Legislative Council would terminate on June 30, 1997. At least until that date, there will be a validly constituted legislative body.
Further, as the provisional legislature is intended to start sitting in early 1997, it is difficult to see how the provisions in the Basic Law governing the process of law-making can be complied with.
Bills have to be introduced by someone. Under Article 62, it is the function of the Government of the HKSAR to draft and introduce bills, motions and subordinate legislation. While, under Article 74, members of the Legislative Council may introduce bills, these are only bills which do not relate to public expenditure, or political structure, or the operation of government; otherwise the written consent of the Chief Executive is required.
Procedures for voting on bills and motions as laid down in Annex II.II have to be followed. The bill passed by the Legislative Council then has to be signed by the Chief Executive under Article 74. How can any of this be done before July 1, 1997?
If the HKSAR "government" in waiting operates these procedures as though July 1, 1997 had already arrived, there will be many doubts concerning the status of any "laws" which the provisional legislature purports to pass. Those who serve in the provisional legislature before that date would presumably have to recognise an alternative government with authority to make laws for Hong Kong. Also such laws would not appear to qualify as part of "the laws previously in force in Hong Kong" for which there is a through train under Article 18 and 160.
The many constitutional and legal problems created by the proposal to establish a provisional legislature particularly one which will be in operation before July 1, 1997 should not be brushed aside as being of no moment. It is imperative that a legal and constitutional solution be found that does not involve a breach of the Joint Declaration and the Basic Law.
The consequences of failing to do so may cast a long shadow over the establishment of the HKSAR.