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of a nation and the existence of which is officially proclaimed, but which delineates what is allowed under this article and which does not permit restriction of more fundamental rights (the right to life, freedom from cruel inhuman or degrading treatment and servitude, recognition as person before law, creation of subsequent criminal offences, freedom of thought and religion etc.).
Chapter IV
Article 45, paragraph 1: Although political circumstances probably justify to have the words 'or through consultation' in the Basic Law at the moment, I believe this should be only a temporary measure and should be limited in time, and accordingly the words 'for the first ten years of the existence of the SAR' should be added so that the first paragraph reads 'shall be selected by election (although a method through consultations shall be permitted for the first ten years of the existence of the SAR)'.
Article 45, paragraph 3, sixth line: The words 'and the consent of the Chief Executive' should be deleted. No Chief Executive would consent to have his own power prescribed or his/her successor's appointment made more difficult. Article 48, paragraph 4: The Chief Executive should not be able to decide on Government policy without the consent of the legislature. This is extremely important as otherwise we will have a dictatorship. This paragraph should be amended to read: 'To decide on Government policies subject to approval by the legislature and to issue executive orders...'.
Article 48, paragraph 6: I believe, in order to make absolutely certain of the division between the executive and judicial powers, appointments and dismissals of judges must be subject to the agreement of the Chief Justice and this paragraph should therefore read: 'To appoint or remove judges of the courts at various levels in accordance with legal procedures and with the consent of the Chief Justice'.
Article 55, paragraph 2: I believe it is wrong to limit the Executive Council to Chinese nationals. If the intention is to keep the Executive Council ethnic Chinese this is understandable and acceptable, but there will be in the SAR a considerable number of ethnic Chinese who will not be Chinese nationals and yet bona fide residents of Hong Kong and it will be quite wrong to exclude these highly educated useful people from the Executive Council. The words 'Chinese national' should therefore be deleted from this paragraph and either the words 'ethnic Chinese' substituted or it simply be left as 'shall be permanent residents of the Region'.
Article 57 and 58: In addition to these two articles the office of an 'Ombudsman' must be established. This is absolutely essential in order to deal properly with possible abuses of powers by Civil Servants, the judiciary, or the legislature.
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Article 60: I think it is wrong in a Basic Law to go into too much detail. The Chief Executive and the civil service should have enough freedom left to themselves to decide what sort of departments, bureaus and divisions, etc. should or should not be established. I could certainly visualize circumstances under which a separate Department of Administration and a separate Department of Finance might not be necessary, one Department might do. The Chief Executive's hands must not be tied in this way and I believe the second paragraph of Article 60 should be deleted.
Article 61: Re the words 'Chinese national', please see my comments regarding Article 55. The same applies here.
Article 62, paragraph 2: I believe there is a printing error here as Article 14 does not specify management of administrative affairs.
Article 65: This again ties the executive's hands. Although advisory bodies could be very useful, they also might become unnecessary if the legislature does its work properly. I believe this article should be deleted.
Article 67: In the penultimate line the consent of the Chief Executive should not be necessary for similar reasons already given in my comments on Article 45, but also because the Legislative Council can override the Chief Executive's veto by a two-thirds majority, and since the Legislative Council in this paragraph needs a two-thirds majority, consent by the Chief Executive becomes redundant. This should therefore be deleted.
Article 70: I would prefer Alternative 1:
Article 72: My experience of the powers of the Civil Service in Hong Kong leads me to believe that these are excessive, and although not often misused, the possibility of misuse is a constant danger. I think, therefore, it is essential that the Basic Law permits the institution of a ministerial system, and such an institution should be covered in this paragraph, which outlines the workings of the legislature. Since the change to the ministerial system is fundamental and serious, it should be permitted only by a two-thirds majority of the legislature.
Article 73: I prefer Alternative 2.
Article 96: The words in the first line 'not local organs of political power' do not make any sense. Municipal councils the world over, and also in Hong Kong, by their very nature have political power. In fact, they have more direct influence on the lives of the inhabitants of a city than the Central Government. The wording in my view could curtail the power of the Municipal Councils and would also affect their efficiency. Also, I believe this article is wrong in delineating what such municipal councils can and cannot do. Municipal councils should be responsible for education and transport, and I can foresee such a development in the next 25 years in Hong Kong. If the Basic Law limits municipal councils to just culture, recreation, and environmental sanitation, it will put a straight jacket on municipal government, which in the future could
Page 58 of 182
108
HONG KONG URBAN COUNCIL
of a nation and the existence of which is officially proclaimed, but which delineates what is allowed under this article and which does not permit restriction of more fundamental rights (the right to life, freedom from cruel inhuman or degrading treatment and servitude, recognition as person before law, creation of subsequent criminal offences, freedom of thought and religion etc.).
Chapter IV
Article 45, paragraph 1: Although political circumstances probably justify to have the words 'or through consultation' in the Basic Law at the moment, I believe this should be only a temporary measure and should be limited in time, and accordingly the words 'for the first ten years of the existence of the SAR' should be added so that the first paragraph reads 'shall be selected by election (although a method through consultations shall be permitted for the first ten years of the existence of the SAR)'.
Article 45, paragraph 3, sixth line: The words 'and the consent of the Chief Executive' should be deleted. No chief Executive would consent to have his own power prescribed or his/her successor's appointment made more difficult. Article 48, paragraph 4: The Chief Executive should not be able to decide on Government policy without the consent of the legislature. This is extremely important as otherwise we will have a dictatorship. This paragraph should be amended to read: 'To decide on Government policies subject to approval by the legislature and to issue executive orders . . .'.
Article 48, paragraph 6: I believe, in order to make absolutely certain of the division between the executive and judicial powers, appointments and dis- missals of judges must be subject to the agreement of the Chief Justice and this paragraph should therefore read: 'To appoint or remove judges of the courts at various levels in accordance with legal procedures and with the consent of the Chief Justice'.
Article 55, paragraph 2: I believe it is wrong to limit the executive council to Chinese nationals. If the intention is to keep the executive council ethnic Chinese this is understandable and acceptable, but there will be in the SAR a considerable number of ethnic Chinese who will not be Chinese nationals and yet bona fide residents of Hong Kong and it will be quite wrong to exclude these highly educated useful people from the executive council. The words 'Chinese national' should therefore be deleted from this paragraph and either the words 'ethnic Chinese' substituted or it simply be left as 'shall be permanent residents of the Region'.
Article 57 and 58: In addition to these two articles the office of an 'Ombudsman' must be established. This is absolutely essential in order to deal properly with possible abuses of powers by Civil Servants, the judiciary, or the legislature.
HONG KONG URBAN COUNCIL
Page 58 of 182
109
Article 60: I think it is wrong in a Basic Law to go into too much detail. The chief executive and the civil service should have enough freedom left to themselves to decide what sort of departments, bureaus and divisions, etc. should or should not be established. I could certainly visualize circumstances under which a separate Department of Administration and a separate De- partment of Finance might not be necessary, one Department might do. The chief executive's hands must not be tied in this way and I believe the second paragraph of Article 60 should be deleted.
Article 61: Re the words 'Chinese national', please see my comments regarding Article 55. The same applies here.
Article 62, paragraph 2: I believe there is a printing error here as Article 14 does not specify management of administrative affairs.
Article 65: This again ties the executive's hands. Although advisory bodies could be very useful, they also might become unnecessary if the legislature does its work properly. I believe this article should be deleted.
Article 67: In the penultimate line the consent of the Chief Executive should not be necessary for similar reasons already given in my comments on Article 45, but also because the legislative council can override the Chief Executive's veto by a two-thirds majority, and since the legislative council in this paragraph needs a two-thirds majority, consent by the Chief Executive becomes redun- dant. This should therefore be deleted.
Article 70: I would prefer Alternative 1:
Article 72: My experience of the powers of the Civil Service in Hong Kong leads me to believe that these are excessive, and although not often misused, the possibility of misuse is a constant danger. I think, therefore, it is essential that the Basic Law permits the institution of a ministerial system, and such an institution should be covered in this paragraph, which outlines the workings of the legislature. Since the change to the ministerial system is fundamental and serious, it should be permitted only by a two-thirds majority of the legislature.
Article 73: I prefer Alternative 2.
Article 96: The words in the first line 'not local organs of political power' do not make any sense. Municipal councils the world over, and also in Hong Kong, by their very nature have political power. In fact, they have more direct influence on the lives of the inhabitants of a city than the Central Government. The wording in my view could curtail the power of the Municipal Councils and would also affect their efficiency. Also, I believe this article is wrong in delineating what such municipal councils can and cannot do. Municipal councils should be responsible for education and transport, and I can foresee such a development in the next 25 years in Hong Kong. If the Basic Law limits municipal councils to just culture, recreation, and environmental sanitation, it will put a straight jacket on municipal government, which in the future could
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