A successful job?
The help offered by the Preliminary Working Committee is challenged

by Kwok Kar Bo

Set up in 1993, the PWC was dismissed at the end of 1995. Its proposals always aroused objections from Hong Kong people. Voices came from not only democrats, but also delegates of the National People’s Congress.

In addition, the legitimacy of the committee was questionable. Different parties held various opinions. Mr. Tsang Yok Sing, a member of the political subgroup of the Preliminary Working Committee, said, “The committee was a legal body because the National People’s Congress which is the legislative body of Mainland China, approved its establishment.”

Yet, Mr. Lo Chi Kin, a member of the Central Committee of the Democratic Party, disagreed.

“In 1990, the National People’s Congress passed the Basic Law, which only mentioned the creation of a Preparatory Committee to aid a smooth transition of the Special Administrative Region. Based on the spirit of the Basic Law, no other organization should be set up. Otherwise, China can do anything which is not mentioned in the Basic Law.”

Dr. Michael Davis, senior lecturer in the Department of Government and Public Administration at The Chinese University of Hong Kong, regarded the problem as a nontechnical one.

“I don’t see any legal constraint over China’s creating advisory bodies in Hong Kong. Nevertheless, what the Preliminary Working Committee actually did on human rights, election, democracy and so forth, had profoundly offended the promises made for Hong Kong people.

“It didn’t follow the original plan. It seemed that China had constituted a separate power centre by forming the Preliminary Working Committee, being too aggressive in exerting control over Hong Kong,” said Dr. Davis.

However, he thought that it would be illegal if the suggestions made by the Preliminary Working Committee were routinely adopted by the Chinese Government without consulting Hong Kong people.

“People want to have confidence about those who make decisions about their rights. As the Preliminary Working Committee appeared to be exercising too much power, it created anxiety among Hong Kong people. It would be more proper to leave those important decisions to Preparatory Committee and the future Special Administrative Region government,” he said.

The worsening of Sino-British relations was regarded as the cause of the unsatisfactory discussions on future policies for Hong Kong.

Mr. Tsang tried to clarify the role of the emergence of the committee.

“Following the June Fourth Incident in 1989, the British Government has obviously changed the policy towards Hong Kong and seemed to expect great political reforms in China,” said Mr. Tsang.

“Therefore the Preliminary Working Committee helped to deal with affairs about the handover under the uncooperative attitude, divergence of Hong Kong people and discussion over controversial issues.”

Left: PWC’s Tsang Yok Sing: “The Prelim- inaryWorking Committee was a legal body.”

Mr. Lo said China should make greater effort to aim for an agreement.

“China should suggest a better way to solve the problem in the legislature, as they rejected letting the present Legislative Council to continue after the changeover.

“And we need a guideline to start our discussion. Now they simply reject any proposal given by the Hong Kong Government,” said he.

Dr. Davis said that before the June Fourth Incident, Britain had acted in a way that seemed to try to please China. After 1989, the British Government had a heightened sense to maintain democracy and autonomy in Hong Kong. In 1992, the more politically liberal Governor Chris Patten replaced Sir David Wilson.

The change in governing attitude was regarded as a betrayal by the Chinese government. Yet, to the democrats, it was the first time that Britain stood up firmly.

According to Mr. Tsang, the committee successfully resolved the debate on Court of Final Appeal. However, Miss Liu Yiu Chu, a delegate of the National People’s Congress and a former Basic Law drafter, said that the issue was left to the Preparatory Committee or Special Administrative Region government.

The introduction of the provisional legislature created shock in the community. The Preliminary Working Committee said that it was “a choice out of no choice” because there was no cooperation between Britain and China any longer.

Said Mr. Tam Yiu Chung, a member of the legal subgroup of the Preliminary Working Committee: “The provisional legislature is to avoid the instability caused by the legislative vacuum during the handover, as the work involved in the creation of the first legislature is time-consuming, like registration of the voters, the changes in the method of election, and so forth.”

But Mr. Lo argued that there was enough time to prepare for the first legislature of Hong Kong. He said, “With the foundation of laws in Hong Kong, there is little chance of having a political and legal vacuum.”

He said China could appoint anyone to run the provisional legislature which was a short cut to eliminate election. Mr. Davis also pointed out the symbolism behind the provisional legislature. “It alerts people that China is taking a rather little commitment in the Joint Declaration,” said Dr. Davis. “Setting up the provisional legislature is not the only way to solve the problem. For instance, the National People’s Congress can take up the post for a short period.”

The Preliminary Working Committee also proposed to dilute the Bill of Rights. It was said that the Bill of Rights has surpassed the Basic Law and thus has to be amended.

“We could have removed the Bill of Rights, but Hong Kong people might find it unacceptable. In order to resolve the dilemma, a compromise has been made to inhibit the superiority of the Bill of Rights,” said Mr. Tam.

“We brought in the amendments of the 52 statements. I personally think that this can be further examined by the government of the Special Administrative Region.”

Dr. Davis said that it was impossible for the Bill of Rights to override the Basic Law because it is just a common law. The Basic Law will always be the highest law.

According to Dr. Davis, the way that common law works is to put the constitution in the first position. Legislation and ordinances come in the second position. Therefore, it is meaningless to say that the Basic Law, as the Constitution, is inferior to the Bill of Rights.

“The Basic Law guaranteed our freedom of speech, but it is claimed that this freedom can be taken away by the enforcement of the Public Order Ordinance,” said he.

“Then with the Bill of Rights, people can defend themselves in the court. I think this may be regarded as another kind of superiority, not by the law itself, but the actual use in the court.

“The concern of Hong Kong people is the hostile attitude held towards the Bill of Rights by the Preliminary Working Committee and ultimately by the Chinese government,” said Dr. Davis.

“The restoration of the six laws suggested that the Basic Law might take away people’s rights. If so, people will be really concerned to have a stronger bill of rights.”

Yet Mr. Lo viewed the dilution of the Bill of Rights as a political strategy of China. There is still no final conclusion on the issue.

Though claimed to assist the handover of sovereignty of Hong Kong, both the identity and suggestions made by the committee have always been under fire by Hong Kong people.

“These sorts of arguments will continue in the several hundred days before July 1, 1997,” said Mr. Tsang.

January 1996