XN000022-1997-01-30 — Page 4

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Reasoned? That would require an explanation of which particular provisions of the Basic Law are being breached and how; of the legal mechanism by which the earlier Ordinances would be reinstated; and of how this reinstatement would itself avoid breaching the BL provisions on freedoms and the Covenants. These questions are being asked, not only by the Hong Kong Government, but by most sections of the community. No serious effort has been made to answer them. For example, the only Article of the BL which has been cited to justify gutting the BORO is Article 160. But that only empowers the Standing Committee of the National Peoples' Congress to declare that extant laws contravene the Basic Law. It contains nothing about the basis for recommending such a declaration in this or any other specific case. In other words, like the old song, "we're here because we're here". That may be good enough for the Sub Group, but it is not good enough for Hong Kong. Under Hong Kong's legal system, any proposed legislative act must be justified thoroughly in terms of Hong Kong's laws. Failure to provide such justification not only invites legal challenge to the act itself, but also undermines the integrity of the legal system as a whole.

According to law? Take what happens under the common law when an Ordinance is repealed. Earlier legislation on the subject does not, contrary to some misleading statements which have been made, spring mysteriously back to life. There would be a vacuum, which would need somehow to be filled in a proper and legal manner by new legislation. But only one body can legislate for Hong Kong before 1 July, and that is the Legislative Council. No attempt has been made to explain how this problem will be addressed. There is no way of addressing it in the terms apparently envisaged by the Sub Group which would not itself be legally questionable. The result will be a legal shambles, whose only effects will be to discredit Hong Kong's legal system and those responsible for upholding it, and to bring down a series of harmful legal challenges from 1 July onwards.

The Bar Association has made clear in a recent paper that not only is it unnecessary to make these changes, it would also be senseless in legal terms to attempt to do so. "It would be an exercise in legislative futility", the Association states, "to seek to re-enact a law known to be inconsistent with the ICCPR because, with or without the Bill of Rights, such a law would also be inconsistent with Article 39 of the Basic Law and/or those provisions of the Basic Law which guarantee specific rights such as the right to be presumed to be innocent and would be unconstitutional and liable to be declared so by judges exercising powers of final adjudication under Article 19 of the Basic Law." What could be clearer than this as a statement of the legal position?