Hong Kong Human Rights Monitor

Executive's Cloak of Legality

Tung Chee-hwa will be making his first official trip as Chief Executive early next month. A government spokesman was quoted as saying that he would be able to demonstrate to world leaders "that the transition had been smooth and there had been no change after July 1".

This message will be readily accepted by:

- governments which are eager to improve their trade relations with China;
- people who had expected Hong Kong's streets to be overrun with PLA troops and Hong Kong's economy to collapse as a result of mass exodus on the dot of, or soon after, midnight on June 30;
- the casual foreign journalist who has no clear idea what Hong Kong was or is likely anyway and what really matters.

If a smooth transition means that no riot in the streets is what counts but that the disappearance of the three-tier representative government and its replacement with an appointed system does not count, then the transition has been "smooth" But as to "no change", it would take even greater selectivity about the truth to argue.

I do not mean the obvious symbols of sovereignty such as all the red flags flying over Hong Kong or the bauhinia emblem over every government office, on every document, and in every courtroom of the SAR. Many changes have already taken place which affect the fundamentals of the Hong Kong way of life. Let me name some of the publicly-observable changes.

1. On July 1, the Reunification Ordinance was passed which gives retrospective effect to criminal liability, something which has no precedent within memory.

2. On July 8, the Immigration (Amendment)(No. 5) Bill restricting the rights of Chinese children born to Hong Kong permanent residents was approved by the Executive Council in the early afternoon, and published at 4:30pm. On July 9, less than 24 hours after gazetting, the bill was given three readings and passed with no significant amendment by the Provisional Legislative Council. Provisions which could allow a person with the right of abode to be removed from Hong Kong were given retrospective effect. No prior consultation was undertaken.

3. On July 13, following the pledge of more than 100 lawyers to offer pro bono help to safeguard the rights of children who may be subject to removal orders without the benefit of legal aid, the president of the Provisional Legislative Council Rita Fan Hsu Lai-tai openly queried offering legal aid to the children as "a waste of public funds".

4. On July 16, again with no prior public consultation, a bill was passed to "freeze" four ordinances lawfully passed by the last legislative council just before the handover.

5. On July 18, guidelines were issued, specifying that in deciding whether or not to interfere with a public gathering or procession on grounds of "national security" a police officer "will take into consideration, among other things" whether the purpose of the gathering or procession is to advocate the independence of Taiwan or Tibet. Previously, a police officer may have intervened only on the basis of conduct, not political purpose.

6. On July 22, the first challenge of the legality of the Provisional Legislative Council was heard before the Court of Appeal. The court was urged by the Solicitor-General for the SAR, Daniel Fung Wah-kin, to decide on the issue when both the Department of Justice and Director of Legal Aid Chan Shu-ying had refused to provide an amicus curiae - or friend of the court - or leading counsel to ensure that there would be full argument for both sides.

7. On July 23, a "consultation" paper on electoral arrangements for the Legislative Council election for the functional constituency and election committee seats was released with a "consolation period" of seven days.

8. On July 28, in a radio interview, the Director of Legal Aid revealed, for the first time, a policy of disqualifying lawyers in private practice from giving legal advice on whether legal aid should be granted in a particular case, if they are perceived to hold certain political views.

9. On July 29, the Court of Appeal handed down a judgment which accepted the submission put forward by the SAR that SAR courts have no jurisdiction to challenge a decision or resolution of the National People's Congress or its creatures and must give it effect in law regardless of any provisions of the Basic Law. The judgment was greeted by the Chief Executive and senior SAR officials as "a victory of the rule of law".

10. On August 15, the Legislative Council election bill was published reducing the size of the electorate for the 30 functional constituency seats from 2.7 million to 180,000. More important still, the one-organisation-one-vote was reverted to for these constituencies.

What the above points indicate is a material change in direction on the rule of law and the style of administration. The repeated occurrences of token consultation, and short or no prior publication for important policies, are symptoms of a high-handed government bent on pushing its will through. On more than one occasion, senior officials did not even pretend that the policy being pushed through could be justified on respectable grounds of merit.

For example, asked how the Government could justify the unfairness of such a narrow electoral base for the functional constituency seats, Michael Suen Ming-yeung, the Secretary for Constitutional Affairs, could offer no defence. Instead, he asked people to place their attention elsewhere, namely, on the 20 directly-elected seats. Earlier, asked about why the public's support for single seat, single vote for directly-elected seats was not canvassed, Nicholas Ng Wing-fui, the man then occupying the office, merely said this was not within the brief from the Preparatory Committee.

The even more-blatantly-cynical position was taken on children born on the mainland to Hong Kong permanent residents. Here, a policy to exercise immigration control - quite illegally - over children who may have the right of abode in Hong Kong was sought to be implemented under the form of proof of status. The true aim was hardly disguised. In fact the legislation was promoted to the public as an effective way to achieve that aim. Yet to justify it in law, it was argued that it merely provided a method of proof.

Thus we see the executive using the legislative process to give its bare will the cloak of legality. It is the beginning of the rule by law, supplanting the rule of law. With an elected legislature this would not be so easily achieved, but the indirectly-appointed Provisional Legislative Council has shown the public how readily it will comply and co-operate. Challenges in court will be uphill, particularly when legal aid takes a restrictive attitude.

With the NPC which can intervene at will, and the PLC which will rubber stamp as required, the SAR executive is set to do as it pleases. It may be that up to now it pleases the SAR executive to be benevolent and generous (itself a patronising stance), but this must not be confused with the protection of rights.

Hong Kong has barely advanced 50 days into its life as the SAR, and the erosion of the safeguards of the Basic Law has already begun.

Whatever the outside world may choose to believe, it will not take long for the inhabitants of the new SAR to realise that their rights and freedoms will depend on administrative clemency and not the protection of law.

Margaret Ng

1998 (c) Hong Kong Human Rights Monitor