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So do these recommendations reflect autonomy? Are they an example of Hong Kong people ruling Hong Kong? They certainly have nothing to do with foreign affairs or defence. But nobody who has spent more than a few minutes in Hong Kong over the last few days can be in any doubt that they are repugnant to the community. On that basis alone the Preparatory Committee should reject the proposals, and leave decisions about civil liberties to the SAR Government accountable as promised to an elected legislature.
What about freedoms? Is it true, as has been suggested, that the proposals will not undermine Hong Kong's civil liberties?
A cornerstone of our freedoms is, and will through Article 39 of the Basic Law remain, the International Covenant. The International Covenant is incorporated into the law of Hong Kong by the BORO. One of the provisions which the Sub-Group would like deleted is Section 3(2) of the BORO. That provision reflects the common law principle that pre-existing legislation that cannot be construed consistently with an Ordinance is, to the extent of the inconsistency, repealed. If that provision goes, what will be the legal status of pre-existing legislation that is in breach of the ICCPR, and therefore of Article 39 of the Basic Law? At the very least, the removal of the provision would cast doubt over the way in which the Covenant's provisions would apply, and therefore weaken the protection provided under those provisions. Looked at from any angle, that would be a body blow to Hong Kong's freedoms, not to mention to the integrity of the BL itself. So, self-evidently, would the intended restoration of obsolete provisions on public order and the regulation of societies which contravene the Covenant, and thus the BL itself.
But autonomy and freedom mean nothing in any case unless they are embedded in the rule of law. And it is to the rule of law that these proposals pose the most serious threat of all. The distinguished Chairman of the Bar Association, who speaks with great authority on the matter, has made clear the Association's view in her letter of 27 January 1997 to Mr C H Tung, that "the recommendations of the Legal Sub- Group seriously undermine the Rule of Law." In that same letter, the Chairman states that the rule of law requires that "the process of making and repealing law is open, reasoned and in accordance with the law. If not, those in power can make or change law at whim, and it will become rule by the people in power."
Open? The Sub Group has conducted its deliberations entirely behind closed doors. Not only has it made no serious attempt to explain its recommendations, but the recommendations themselves have yet to be authoritatively announced. The community has had to rely on incomplete and contradictory press reports. We do not even know exactly how many Ordinances are to be affected.