Page 64 of 166
118
HONG KONG URBAN COUNCIL
With these words, Mr. Chairman, I beg to move.
MR. STEPHEN M. L. LAU (in English):-Mr. Chairman, when we speak of the Basic Law, we must talk about a few basic issues. The 4 June incident has provided us with much food for thought and more importantly, stimulating more public debates. Hence, there has been much said on the political structure of the SAR. Be they confrontations, concerns, compromises, consensus, and contradictions among various groups. This is a healthy sign, but let's not just look at the tree and forget the woods. We must seek clarity to our own minds and be assertive in our stance not just on how the legislature be formed but also other basic issues. This I am about to do.
The Article 11 says the Hong Kong SAR will be set up in accordance with the Article 31 of the Chinese constitution. This enables that the various policies and systems of the SAR be based on the provision of the Basic Law. But concern has been expressed that the Article 31 and other Articles of the constitution may come into conflict with other Articles, which provide for the supremacy of the socialist system. There is, therefore, a risk that the principle of 'one country, two systems' cannot be fully and properly implemented. In order to ensure that the SAR will practise policies and systems different from those of the Mainland, we have to remove, by appropriate means, any doubt of the consistency between the Article 31 and other Articles of the Constitution. I shall go along with the idea suggested by the BLCC Law panel. That is, in the event of any conflict between the Constitution and the Basic Law, the latter would prevail, if it was enacted by the National People's Congress by a two-thirds majority. This is a very important issue and let us not lose sight of the remarks made by the Communist Party General Secretary, JIANG Zemin (E) that 'the river water should never interfere with the well water and vice versa'.
This has to hold true, particularly, when we talk about Article 14 concerning the stationing of the People's Liberation Army in the SAR. Nobody can deny that the stationing of the troops is within the sovereign right of China. As the Hong Kong public can never forget the May and June incidents in Beijing, they fear a repeat, in the case of any untoward event in the SAR after 1 July 1997. This prompts me to propose the PLA troops be subject to the jurisdiction of the SAR courts, where appropriate, when they are stationed in the SAR. In the event, the SAR Government requests the assistance of the troops in maintaining public order, or in disaster relief, the request should be endorsed by the SAR legislature.
In the same vein, the Article 18 touches on the maintenance of public order in the SAR. According to Section XII of Annex one to the Joint Declaration, it states that turmoil within the SAR should be the responsibility the SAR Government. However, the declaration of a state of emergency should be decided and made by the Chief Executive of the SAR, and the legislature should also be asked to approve any prolonged period of emergency if it is required to do so. Of course, the State Council could, in case of the state of war has been declared, decree the application in the SAR of the relevant national laws.
HONG KONG URBAN COUNCIL
119
Now may I turn to the Article 67 on the political structure. It states that the ultimate objective is to have a fully directly elected legislature. Indeed it is an issue of immense public interest. Whether the Omelco formula, the 4-4-2 model, or the bicameral proposal gets the public support, Hong Kong must have a general consensus to ensure a smooth transition beyond 1997. I am not too worried when the legislature is going to be fully directly elected, but I do like to sound a note of caution on the quality and the structure of the legislature.
To maintain a continuity of such a consensus, there should be some form of political alliance which should be organized by sound and well argued platforms for the well being of the HKSAR.
Party aspirations and disciplines should be embodied in the constitution of the groups as part of the democratization process, in the fielding candidates for elections. We should discourage any formation of loosely knit election-oriented groups, whereby only sectoral interests, rather than public well-being, are to be served. Only then, Hong Kong SAR will be better poised for a more mature democratic development.
In discussion on the future relationship between the Chief Executive and the legislature, I feel there should be adequate checks and balances between the two in order to have an efficient and effective working partnership.
In the Section 1 of Annex I to the Joint Declaration, it provides that the executive authorities shall be accountable to the legislature, but the Article 64, as drafted, enumerates just four areas within this accountability. The four areas include implementing laws passed by the Council and already in force; presenting regular reports on its work to the Council, answering questions raised by members of the Council; and obtaining approval from the Council for taxation and public expenditure. I do recommend this Article should be suitably amended so that the accountability of the Chief Executive to the legislature is not unduly restricted. Indeed, if the legislature does not have general legislative power, the promised high degree of autonomy would just look good on paper.
As Article 73 now provides that members of the legislature may not introduce bills related to the future expenditure or the structure and operation of the government, this is deemed to be very restrictive. I would suggest the SAR legislature should be given all legislative power except over matter that one within the jurisdiction of China, such as defence. Otherwise our Council may not even be able to legislate the restaurant and hawker licensing.
As for status of the Chief executive and his senior representatives, they should be given the due recognition and seniority to reflect their importance in the Chinese state hierarchy and international area. I venture to suggest that the Chief executive should rank equivalent to a cabinet minister or a provincial governor in the Chinese Government precedence list not only in name but also in substance.
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is not present, insteadPage 64 of 16
is likely an error and should be ignored as it doesn't follow the original page numbering format. The correct sequence should continue with page information related to the original document, thus it is kept as is:Page 64 of 166
at the beginning and end.t
Page 64 of 166
"
118
HONG KONG URBAN COUNCIL
With these words, Mr. Chairman, I beg to move.
MR. STEPHEN M. L. LAU (in English):-Mr. Chairman, when we speak of the Basic Law, we must talk about a few basic issues. The 4 June incident has provided us with much food for thought and more importantly, stimulating more public debates. Hence, there has been much said on the political structure of the SAR. Be they confrontations, concerns, compromises, consensus, and contradictions among various groups. This is a healthy sign, but let's not just look at the tree and forget the woods. We must seek clarity to our own minds and be assertive in our stance not just on how the legislature be formed but also other basic issues. This I am about to do.
The Article 11 says the Hong Kong SAR will be set up in accordance with the Article 31 of the Chinese constitution. This enables that the various policies and systems of the SAR be based on the provision of the Basic Law. But concern has been expressed that the Article 31 and other Articles of the constitution may come into conflict with other Articles, which provide for the supremacy of the socialist system. There is, therefore, a risk that the principle of 'one country, two systems' cannot be fully and properly implemented. In order to ensure that the SAR will practise policies and systems different from those of the Mainland, we have to remove, by appropriate means, any doubt of the consistency between the Article 31 and other Articles of the Constitution. I shall go along with the idea suggested by the BLCC Law panel. That is, in the event of any conflict between the Constitution and the Basic Law, the latter would prevail, if it was enacted by the National People's Congress by a two-thirds majority. This is a very important issue and let us not lose sight of the remarks made by the Communist Party General Secretary, JIANG Zemin (E) that 'the river water should never interfere with the well water and vice versa'.
This has to hold true, particularly, when we talk about Article 14 concerning the stationing of the People's Liberation Army in the SAR. Nobody can deny that the stationing of the troops is within the sovereign right of China. As the Hong Kong public can never forget the May and June incidents in Beijing, they fear a repeat, in the case of any untoward event in the SAR after 1 July 1997. This prompts me to propose the PLA troops be subject to the jurisdiction of the SAR courts, where appropriate, when they are stationed in the SAR. In the event, the SAR Government requests the assistance of the troops in maintaining public order, or in disaster relief, the request should be endorsed by the SAR legislature.
In the same vein, the Article 18 touches on the maintenance of public order in the SAR. According to Section XII of Annex one to the Joint Declaration, it states that turmoil within the SAR should be the responsibility the SAR Government. However, the declaration of a state of emergency should be decided and made by the Chief Executive of the SAR, and the legislature should also be asked to approve any prolonged period of emergency if it is required to do so. Of course, the State Council could, in case of the state of war has been declared, decree the application in the SAR of the relevant national laws.
HONG KONG URBAN COUNCIL
119
Now may I turn to the Article 67 on the political structure. It states that the ultimate objective is to have a fully directly elected legislature. Indeed it is an issue of immense public interest. Whether the Omelco formula, the 4-4-2 model, or the bicameral proposal gets the public support, Hong Kong must have a general consensus to ensure a smooth transition beyond 1997. I am not too worried when the legislature is going to be fully directly elected, but I do like to sound a note of caution on the quality and the structure of the legislature.
To maintain a continuity of such a consensus, there should be some form of political alliance which should be organized by sound and well argued platforms for the well being of the HKSAR.
Party aspirations and disciplines should be embodied in the constitution of the groups as part of the democratization process, in the fielding candidates for elections. We should discourage any formation of loosely knit election-oriented groups, whereby only sectoral interests, rather than public well-being, are to be served. Only then, Hong Kong SAR will be better poised for a more mature democratic development.
In discussion on the future relationship between the Chief Executive and the legislature, I feel there should be adequate checks and balances between the two in order to have an efficient and effective working partnership.
In the Section 1 of Annex I to the Joint Declaration, it provides that the executive authorities shall be accountable to the legislature, but the Article 64, as drafted, enumerates just four areas within this accountability. The four areas include implementing laws passed by the Council and already in force; presenting regular reports on its work to the Council, answering questions raised by members of the Council; and obtaining approval from the Council for taxation and public expenditure. I do recommend this Article should be suitably amended so that the accountability of the Chief Executive to the legislature is not unduly restricted. Indeed, if the legislature does not have general legislative power, the promised high degree of autonomy would just look good on paper.
As Article 73 now provides that members of the legislature may not introduce bills related to the future expenditure or the structure and operation of the government, this is deemed to be very restrictive. I would suggest the SAR legislature should be given all legislative power except over matter that one within the jurisdiction of China, such as defence. Otherwise our Council may not even be able to legislate the restaurant and hawker licensing.
As for status of the Chief executive and his senior representatives, they should be given the due recognition and seniority to reflect their importance in the Chinese state hierarchy and international area. I venture to suggest that the Chief executive should rank equivalent to a cabinet minister or a provincial governor in the Chinese Government precedence list not only in name but also in substance.
Page 64 of 16
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