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Whistleblowing, red chips, and the Provisional Legislature in Hong Kong.

The reversion of Hong Kong and its 6.4 million residents from Britain to China became an international headline. The grand reversion celebration at midnight on June 30, 1997, was attended by world leaders. There was much debate about who would attend the inauguration of the Beijing-appointed legislative council, and the world watched to see whether China would interrupt a protest organized by democracy supporters. But underlying the highly publicized events is one main question: Will Deng Xiaoping's model of "One Country Two Systems" work? Further questions spring up: Can a prosperous, capitalist mega-city survive with some autonomy and maintain the rule of law while being a part of socialist mainland China? How can "One Country Two Systems" be implemented?

As a Hong Kong-born Chinese of parents from the neighboring province of Fujian, I look forward to the long-term success of Deng's model and hope to contribute to the realization of this success by analyzing three controversial aspects of Hong Kong's return to China: whistle-blowing, red chips (mainland China-funded companies), and the Provisional legislature in Hong Kong. If these issues arc not handled properly with informed decisions, they can undermine the good intentions of both Beijing and Hong Kong. Hong Kong's experiences as it returns to China also highlight issues of concern to public administrators everywhere. The issues that have come up so far suggest what institutions or procedures arc necessary to fight corruption, protect human rights, and maintain the rule of law.

Whistleblowing: Civil Servant's Free Speech and Decolonization

In 1989, the United States enacted the Whistleblower Protection Act (Jos, Tompkins, and Hays, 1989, 558). The American Society for Public Administration (ASPA) also asks its members to "protect the whistleblowing rights of public employees" in Section II(6) of its Code of Ethics.

The situation may not be perfect in the United States, but there is some recognition of the need to protect whistleblowers. There is less recognition of this need in the United Kingdom. The internal disciplinary code requires civil servants to obtain prior permission for outside speech. Two cases highlight the unsatisfactory situation in Britain: the prime minister refused to remove the reprimand against Trevor Brown's disclosure of lack of nuclear safety (Cripps, 1983, 602-603) and the whistleblowing doctors and nurses in the British National Health Service all suffered reprisals (Laurance and Dobson, 1993, 12). The situation was much worse during the 150-odd years of colonial rule in Hong Kong. Writing in 1988, Terry T. Lui (161 n. 28) defined whistleblowing as "a situation when an official sounds an alarm drawing attention to instances of abuse or neglect in the organization which might threaten the public interest" and she reported "no documented cases of whistleblowing among serving civil servants in Hong Kong."

If whistleblowing deserved only the attention of an endnote in 1988, the political change since then has made the subject more prominent. In a 1994 survey, Clark concluded that the situation in Hong Kong was a serious that a single law on protecting whistleblowers would not be enough, and argued that the whole structure of accountability, along with a free press and an administrative culture of openness, were also important (1994, 147). Chua and Gould, in considering what kind of whistleblower's protection legislation would ensure accountability and the autonomy of the Hong Kong civil service, concluded that Hong Kong "organizations can live with the injury of their secrets being revealed, but they simply cannot abide the insult that one of their own trusted employees has violated the Weberian Contract in order to do it" (1995, 251, 260).

As the date of the reversion drew near, Hong Kong's Chief Secretary Anson Chan became much more outspoken on Hong Kong's move towards lesser political freedoms and civil liberties (South China Morning Post, 19 May 1997). Her open "hint in an interview with Newsweek that she might resign if she had to implement decisions that went against her principles and conscience" was rightly regarded as "rare" (South China Morning Post, 3, 4 June 1997). Under the years of colonial rule, the British authority always suppressed open dissent--whistleblowing--by civil servants. None of the internal training manuals available for public scrutiny mentioned the right to whistleblowing at all.

The Hong Kong majority party--the Democratic Party--had an opportunity before the reversion to amend the Official Secrets Bill on espionage and official secrets. However, the vote was scheduled to coincide with the June 4 commemoration of the Tiananmen Square student movement in Beijing in 1989 (South China Morning Post, 5 June 1997). Most Democracy Party supporters went to the demonstration and were unable to vote.

It will be more difficult to change this law in the future. Freedom to call attention to violations of the law or public safety may be especially important over the next few years. What if Hong Kong civil servants are called upon to suppress human rights? Can they call attention to the gap between prereversion policies and those of the incoming government, Hong Kong Special Autonomous Region (SAR), if such a gap emerges? Hong Kong's miniconstitution, called the Basic Law, provides a detailed list of protections and requirements, such as a requirement for a balanced budget and for free trade. Will civil servants be able to call attention to violations of the Basic Law if they occur? Will they be able to hold the Special Autonomous Region government accountable to Hong Kong's legislature and to the supervising sovereign in Beijing? The Basic Law requires Hong Kong to maintain a low-tax policy, but what if some kinds of extra fees or surcharges are collected? Could a civil servant raise the issue as questionable under the law? More concretely, if a subordinate discovers that the statistics on free trade he compiles are misrepresented by his boss in a speech to the legislature, would he have the night to tell the truth?

One can only guess whether whistleblowing will be suppressed by the incoming government, but it is important A the same to find a way to legitimize articulation of problems as they arise so that they can be resolved. Before the reversion the Legislative Council had begun to take on the role of protecting whistleblowers; therefore, there is a strong possibility that these powers will be continued into the next Legislative Council. The case of the former immigration chief Laurence Leung, who told the truth during an enquiry, is a case in point (South China Morning Post, 19 June 1997). The Secretary for Civil Service, Lam Woon-kwong, had earlier said in an enquiry of the Legislative Council Select Committee that Leung resigned voluntarily. But Leung testified that he was in fact forced to retire. As a result of the enquiry, Lam "apologised for any `misunderstanding' caused by his explanation to legislators" but justified government action by revealing Leung's "failure to repay a housing loan on time and failure to disclose business links in China and other interests." The committee accepted the justifications but "accused the Government of being high-handed, claiming it had tailored evidence and misled legislators." The degree to which civil servants may call attention to violations of the law, then, is an issue of great concern during the transition. Closely related are questions about what are perceived to be violations of human rights and the role of the legislative body in protecting civil servants who try to call attention to emerging problems. A second important issue is whether the corruption in China will spread to Hong Kong.

Red Chips: Corruption Opportunities and Economic Integration

Red chips are mainland China-funded companies that are registered and operate in Hong Kong and sell stocks on the Hong Kong stock exchange. They are neither fully private nor fully public. The Chinese government still controls these companies though there is some measure of private ownership through die sale of shares. Key personnel of the enterprises are still appointed by the Chinese government (McNally, 1997, 2, 36-37; Zhang, 1997).

In general, red chips have provided a good return on investment. Hong Kong residents have responded enthusiastically to China's red chip offerings, sometimes over subscribing issues. One problem is that the influx into Hong Kong of the red chips is straining Hong Kong's monitoring agency, the Securities and Futures Commission (SFC). The red chips also bring with them a fear of increased speculation and manipulation of stocks. The Securities and Futures Commission has been struggling to curb speculation, particularly in red chips. The regulatory body has requested explanations of unusual price movements and has increased nonroutine field inspections of selected brokerage houses. For the first time in Hong Kong history, a list of 11 companies under the commission's investigation was made public (South China Morning Post, 18 June 1997).

The possibility for corruption is inherent in the fact that China regulates markets and privatization on the one hand and appoints the key officials to manage the enterprises on the other. As a result of China's efforts to privatize and modernize the economy, there has been increased speculation in the mainland's stock exchanges. Many worry that this mainland problem will spread to Hong Kong. On June 12, 1997, after thorough investigations by the Securities Committee of the State Council, the People's Bank of China, the State Auditing Administration, and the China Securities Regulatory Commission, Beijing confirmed, for the first time, a "clean-up" of financial institutions and listed companies for stock market violations. Names of the companies and their responsible officers were explicitly published, with details of the penalties meted out. There could be more punishments to come in Beijing's bid to "weed out financial irregularities in the scandal-ridden industry" (South China Morning Post, 13c June 1997). Given the close economic links between mainland China and Hong Kong, the news caused both stock markets to fall. But they rose again soon because the underlying economies were healthy (South China Morning Post, 13b June 1997).

Because of their nature, the red chips in Hong Kong require regulations from the counterpart of the Securities and Futures Commission in Beijing. The problems associated with the red chips are the high valuations of their actual assets and equity speculation. Another problem has been "extra budgetary funds." A joint order was issued by five government agencies--the Ministry of Finance, the State Planning Commission, the State Auditing Administration, the People's Bank of China, and the Ministry of Supervision--to step up investigations into extra-budgetary funds. The purpose of the investigations is to stop employees from swindling cash not listed in official budgets. A corruption-fighting official indicated that the "sources of these funds vary, from fees charged for outpatient services of hospitals to profits generated by state-owned enterprises supervised by some ministries ... [and to] fees illegally solicited by officials ... There are over a million types of fees collected by administrative bodies." The official admitted openly that "despite efforts to issue new regulations to halt malpractice, the problem remains serious at both the central and local level" (South China Morning Post, 14 June 1997).

More corruption opportunities exist in the mainland than in Hong Kong because China does not separate enterprises from governmental agencies. For example, it is openly reported that Beijing Enterprises Holdings is in fact the investment arm of the Beijing municipal government. The nature of the resulting problems is suggested by the Chinese Communist Party's (CCP) recently published regulations "preventing the wives and children of cadres from setting up businesses in areas of their jurisdiction" and Jiang Zemin's stem warning that "he was `horrified' at the extent of the problem and that the party's [and the Peoples Republics] future was at stake" (South China Morning Post, 11 June 1997; Ta Kung Pao, 16 May 1997). Academic research further suggested that "much of the `dirty money' was channeled through underground banks and stock markets or was laundered in Hong Kong" (South China Morning Post, 7 June 997).

With increasing economic integration between Hong Kong and the mainland (South China Morning Post, 6 June 997), corruption in China, if not effectively controlled by major institutional reforms, will increasingly affect Hong Kong. The Independent Commission Against Corruption (ICAC)--the anticorruption investigative body--in Hong Kong announced a large increase of 13 percent of reported cases in the first four months of 1997, as compared to the same period last year. This prompted the pro-Beijing newspaper Ta Kung Pao to publish a commentary that reiterated the importance of the continuing operation of the Independent Commission Against Corruption, as guaranteed in the Basic Law, and called for strong actions by the commission to curb corruption related to the "quick buck" mentality (Ta Kung Pao, 7a June 1997). The "quick buck" mentality, according to a common belief that has some truth to it, is a product of the years of colonial rule. It refers to the attitude shared by many Hong Kong people who treat Hong Kong as a mere stepping-stone, a place to get rich so that they can move on. But the mainland's embrace of a socialist market economy with Chinese characteristics has aggravated the situation both in Hong Kong and on the mainland.

Another reason for concern about economic integration is that Hong Kong may follow Macau's example. Macau is a nearby Portuguese colony, scheduled to return to China in 1999. In the interim, Macau is characterized by "rampant bureaucratic corruption," "generally uncritical Chinese media," "politically powerful pro-Beijing forces," "relatively weak democratic forces," and "the Portugalized [proportional representation] electoral system" (Lo, 1995, 12, 241, 258, 250, 253-254). Lo found out that, since pro-Beijing companies often exerted considerable influence in Macau's economy and society, it was quite difficult for their employees to voice opposition to pro-Beijing policies (1995, 255-256). As the British hongs withdraw from Hong Kong and more red chips expand into Hong Kong's economy, more Hong Kong employees working for these companies would be susceptible to mainland political mobilization and control. To maintain Hong Kong's separateness, if not autonomy, it is increasingly necessary for Hong Kong to find a solution, acceptable to both Beijing and the international community, to effectively regulate the red chips.

During a recent international conference in Hong Kong, Chan, Kan, and Lin proposed a set of objective criteria to identify and classify the mainland-funded companies listed in Hong Kong (1997, 20). They found out that, as of March 1997, there were 26 H-share, mainland, state-owned enterprises (which are registered in China and have extended their operation to Hong Kong) and 62 red chips, with a total market capitalization of HK $390 billion or 11.2 percent of the market capitalization of all Hong Kong listed companies. The Control Division of the State Council of China reported an estimate of 3,220 mainland companies in Hong Kong with 65,600 employees from the mainland (Chan, Kan, and Lin, 1997, 3). The corresponding figures for Macau, which has a population of about a half million, were 420 companies with 5,800 employees from the mainland. They estimated that there were about 100,000 local employees in these mainland companies in Hong Kong. The red chips' very substantial link with the mainland government agencies and the volatility that die red chips have brought to Hong Kong have raised justifiable concerns about the regulatory authorities of both Hong Kong and Beijing.

In view of the fact that "China will continue to use red chips as a vehicle of reform" and "Chinese liquidity will play a more important role in Hong Kong" (South China Morning Post, 13d June 1997), the need to separate the two markets in accordance with Deng's "One Country Two Systems" model has become evident. Hang Seng Index (HSI) Service, which compiles the Hang Seng Index for stocks listed in Hong Kong, announced that 2 separate stock market index for the red chips would be launched on June 16, 1997 in Hong Kong (South China Morning Post, 13e June 1997). This is a reasonable action to balance the mainland's continuing reforms and Hong Kong's autonomy.

Jeremiah Wong of the Chinese University of Hong Kong and Liu Dongwen of the Chinese Public Administration Society in Beijing concluded on the basis of their research that during the process of "economic convergence" of the mainland and Hong Kong, both regions have to strengthen their cooperation to prevent economic crime (Ta Kung Pao, 7b June 1997). In order to do that, Hong Kong has to continue to improve its own administrative openness by supporting whistleblowers and the Independent Commission Against Corruption and by maintaining accountability to the legislature and the public.

Provisional Legislature: Chinese law versus Common Law

Beijing has set up a Provisional Legislature in Hong Kong, replacing the one elected under the final years of British rule. The Provisional Legislature is to operate for a year. During that year, it is to establish new election laws and hold elections for the regular legislature. The Provisional Legislature has been highly controversial and has raised a host of crucial issues. These issues are important for Hong Kong's future, but they are also important to public administration more broadly because they suggest the tenuousness of die conditions necessary to maintain the rule of law.

The Sino-British joint Declaration between Beijing and London in 1984 suggested a real commitment to a policy of openness and reform. However, successive events, especially those in June 1989 at Tienanmen Square, led to limitations of the promised autonomy for Hong Kong. These limits were reflected in the 1990 Hong Kong Special Autonomous Region Basic Law. (hereafter referred as the Basic Law). When Britain's last governor, Chris Patten, expanded the democratization of Hong Kong's legislature in 1992, Sino-British acrimony intensified to such a point that Beijing announced the abolition of die more democratically elected 1995 legislature and the establishment of its substitute, called the Provisional Legislature. Convened six months before the July 1, 1997 handover, the Provisional Legislature was chosen by indirect elections. Candidates were nominated and "elected" by the Beijing-appointed 400-member Selection Committee. Many candidates were also members of the committee (Ghai, 1997, 275, 278). The Provisional Legislature was not mentioned in the 1984 Sino-British Joint Declaration, the Basic Law, of the decisions of the 1990 National People's Congress (NPC).

Serious doubts have been raised about the constitutionality of the Provisional Legislature (Chen, 1997, 3). The debates center around one main argument which was articulated by Yash Ghai (1997, 276-278), who based his argument on a straightforward reading of the text (Rossum, and Tarr, 1991, 3). The text of the Joint Declaration Annex I(I) elaborates one of Beijing's unamendable basic policies, namely, that the Special Autonomous Region's legislature "shall be constituted by elections." This requirement was to be implemented as specified by Article 68 Paragraph 3 of the Basic Law, which describes "the specific method for forming the Legislative Council ... [as] prescribed in Annex II." Annex II(I) Paragraph 1 in turn refers to Paragraph 6 of the 1990 National People's Congress Decision, which specifies the composition of the first legislature as being one-third by direct elections, one-half by functional constituencies, and only one-sixth by indirect elections through an election committee.

The Patten-inspired legislature conformed to all these "letters ... but probably not... [the] spirit" of the required composition (Ghai, 1997, 78) because Patten greatly expanded the franchise of the functional constituencies. But the Provisional Legislature moved much further from the written rules. All the members were chosen in accordance with what was to be only one-sixth of the legislature. The composition of the Provisional Legislature certainly violated the spirit of Article 68 Paragraph 2, which provides for the "ultimate aim" of direct elections of all legislators by "universal suffrage." Progressively higher proportions of the seats were to be chosen by direct elections for the second and third terms of the legislature, with 2007 being the possible year for realizing the ultimate aim (per Basic Law Annex (II)(I), and (III)). Put simply, the composition of five-sixths of the Provisional Legislature does not comply with the composition prescribed in plain text.

This obvious violation of the written agreements to set up the Hong Kong legislative body makes people wonder whether the agreements are worth anything, whether they can be enforced, or whether they will be changed in accordance with Beijing's preferences over time. The fact that the Provisional Legislature has passed laws limiting freedoms gives all the more reason to declare either the legislature or the legislation illegal. Alternatively, a way must be found to justify a new Provisional Legislature that does not simply give Beijing arbitrary authority over Hong Kong and that maintains the "Two Systems" model. The following arguments suggest the degree of tumult and the possible implications for various justifications of Beijing's actions.

One argument that has been made is that the Provisional Legislature is not actually the first legislature and that it can be pegged to the residuary powers of the Preparatory Committee for the Establishment of the Special Autonomous Region under the 1990 National People's Congress Decision, Paragraph 2. The Provisional Legislature doesn't have to follow the rules because it is not the real, regular legislature. The problem with this rationale is that the Provisional Legislature is acting like a real legislature. It has wide-ranging powers which include "the passage of laws and the endorsements of our judges"; it has all the powers of the first legislature; and it formally sits in the existing legislative chambers. In effect, it is the first legislature of the incoming government of the Hong Kong Special Autonomous Region (Ghai, 1995, 4). The far-reaching power of the so-called "temporary" legislature can already be seen in its reversal of the human-rights-related legislation and in the method of election for the subsequent legislatures. Despite its "temporary" label, it violates a major feature of the Basic Law--the establishment of the legislature--and infringes Hong Kong's autonomy (Ghai, 1997, 277).

A more powerful--and threatening--rationale is that Beijing retained unspecified residuary powers under the Basic law. Under this interpretation, the National People's Congress can make a fresh decision endorsing the act of the Preparatory Committee in forming the Provisional Legislature. There are indeed unspecified residuary powers in the Basic Law, but Ghai considers that any such action by the National People's Congress would amount to an amendment of the Basic Law (1997, 277). The Basic Law is supposed to operate like a constitution; it should not be subject to legislative amendment at will, or it would not be "Basic Law" or any kind of guarantee. The possibility that Beijing might abuse its power threatens the notion of the rule of law that underlies the continued viability of Hong Kong.

Another justification refers to Beijing's plenary powers. Albert H. Y. Chen (1997, 7, 9-10), Dean of the Faculty of Law of the University of Hong Kong and newly appointed to the 12-member advisory Basic Law Committee under the National People's Congress (Ta Kung Pao, 28 June 1997), argued that the Provisional Legislature could be justified by the grundnorm theory of Austrian jurist Hans Kelsen. The argument is as follows. After the handover, the overarching basic norm for Hong Kong's constitutional and legal system shifts from the common law of the British to "one that presupposes the validity of the Constitution of [China] (from which the validity of the [Hong Kong] Basic Law is derived)." The post-handover legal order in Hong Kong is "part of the legal order of [China] and shares with its legal system the same grundnorm." Therefore, the Provisional Legislature "belongs" to the Chinese legal order. Thus, the Provisional Legislature "will assume full legal authority as the legislature of the Hong Kong SAR" on the grounds that "there exists a sufficient legal basis" for it.

Chen, however, never seemed convinced by the grundnorm argument. Part of his hesitation has to do with the fact that the whole Basic Law is probably invalid under the 1982 Chinese Constitution, which expressly prohibits a capitalist system and labels anyone pursuing the capitalist road a counterrevolutionary bad element under the socialist state of China. Would mainland China's socialist grundnorm accommodate an opposing capitalist system, even under Deng's avowed model of "One Country Two Systems"? The 1993 amendment of the Chinese Constitution, formally introducing the innovative concept of "socialist market system with Chinese characteristics," points to a more tolerant attitude towards the capitalist system. But other elements of the constitution would still dash with Hong Kong. If one accepts the Chinese Constitution as the basic law or grundnorm of Hong Kong, one also accepts its underlying four inviolable cardinal principles: leadership by the Chinese Communist Party, Marxism-Leninism and Mao Zedong's thought, proletarian dictatorship, and the socialist road. The policy of "One Country Two Systems" did not envision Hong Kong as living under these inviolable principles for the next 50 years. Ratification of the validity of the Basic Law by a 1990 decision of the National People's Congress only highlights the fundamental question of whether the National People's Congress or the Chinese Constitution is supreme.

Chen's discussion suggests another line of inquiry. How would anyone know whether a law is or is not constitutional under the Chinese Constitution? An increasing number of mainland scholars have expressed the need for some form of judicial review or constitutional review under the Supreme People's Court, a constitutional court, a constitutional committee under the National People's Congress, or the National People's Congress Standing Committee (Xu, 1994a, 147; 1994b, 259; Wang, 1994, 98, 106). But for the moment there is no dear way to take up the issue of the constitutionality of the Provisional Legislature, when the alleged violator is the National Peoples Congress in forming the Provisional Legislature. This is the essence of the ruling of Chief Justice Patrick Chan and two other concurring judges of the Hong Kong Court of Appeal: In ratifying the Provisional Legislature, the National People's Congress performed "a sovereign act which the Hong Kong Special Autonomous Region (SAR) courts cannot challenge" (South China Morning Post, 29 July 1997). The ruling of this first legal challenge after the handover highlights the unrestrainable abusive potential of Beijing's plenary powers. It echoes the hands-off attitudes of the Government Legal Aid Department, and of another Hong Kong judge in the first court challenge before the handover.

The first court challenge against the Provisional Legislature was brought by a founding member of the Democratic Party. Justice Sears decided that, because "the Judiciary's independence would be under threat if judges began taking sides in political disputes," the action was "doomed to failure" but "anyone prosecuted under a law they believed to be invalid would be able to challenge it" after the handover (South China Morning Post, 13a June 1997). In other words, the laws passed by the Provisional Legislature narrowing the scope of human rights could be accepted for challenge in court if the incoming government of the Special Autonomous Region prosecutes under the law. In a pure challenge of the validity of laws, not the legality of the legislature, judges in Hong Kong after the handover should be well-equipped by virtue of their security of tenure and integrity to mete out decisions based on the rule of law. After all, challenges to the validity of legislation under the pre-handover Hong Kong Bill of Rights Ordinance were very common, and they did not shake the legality of the colonial Hong Kong legislature.

But there is a possibility that a challenge to a law passed by the Provisional Legislature would also challenge the constitutionality of the interim body itself Such a challenge would probably provoke Beijing to respond that the matter exceeded the authority of Hong Kong to adjudicate. By the time that the challenge was referred from the local level in Hong Kong to the national level in Beijing, the one-year life of the interim body would have expired or be so close to its presumed end that the judges would have a perfect excuse to sideline the much more serious underlying challenge at the very heart of the Special Autonomous Region--the Chinese Constitution. It remains to be seen whether Patrick Chan's ruling, arising from the main issue of whether a corruption charge can be pursued, will be brought to the Hong Kong Special Autonomous Region Court of Final Appeal and onward to the National Peoples Congress. It appears that a single corruption case is not a good test case to pursue a constitutional issue. Another test case is expected soon: illegal immigrants from the mainland who are children of Hong Kong parents will challenge the constitutionality of the new law forcing their deportation back to the mainland (South China Morning Post, 29 July 1997). Estimates put the number of such children still remaining on the mainland at about 60,000. Permanent residents of the Special Autonomous Region under both Basic Law Article 24(3) and Sino-British Joint Declaration Annex I(XIV), they are queuing up for Beijing's exit permits to Hong Kong.

In the absence of an effective mechanism to review constitutionality, it is difficult to say what is or is not legal. One argument justifying the Provisional Legislature tries to sidestep the issue of legality by arguing instead for political expediency. That is, the Provisional Legislature was necessary to avoid a legal vacuum during the handover. The potential implication of this justification is that whenever political expediency requires it, the Basic Law may be suspended.

But the Provisional Legislature cannot be justified on grounds of avoiding a political vacuum. Ghai counters persuasively that Beijing had over three years to arrange for the proper formation of the first legislature and Britain was obliged to cooperate under the Sino-British joint Declaration (1997, 276). Xiao Weiyun, prominent legal scholar at Beijing University, also stated convincingly that die contingency had long been envisaged and dealt with in a "more perfect and more realistic" drafting, in which he participated as one of the drafters (1990, 368). Chair of the Hong Kong Bar Association, Audrey Eu, referring to the case of Grenada in Mitchell v. DPP (1986, LRC 35), argued that a provisional legislature is only justified in "exceptional circumstances not provided for in the Constitution, for immediate action to be taken to protect or preserve some vital function for the State" and that "there must be no other course of action reasonably available" (1997, 5-6). The invalidation of Patten's electoral laws by the National People's Congress tinder Article 160 of the Basic Law on February 23, 1997, (Ghai 1997, 499-501) does not create a "necessity' for establishing a Provisional Legislature to pass wholesale new laws to fill the National People's Congress's self-created legal vacuum. Such a legal vacuum does not in fact arise at all, as the Patten reforms for the 1995 elections "only affect 19 of the 60 elected seats in the Legislative Council." The simplest solution would have been to hold new elections for the 19 seats, not to provide a wholesale, new arrangement for all 60 seats.

It is not dear whether Beijing will allow Hong Kong to raise the issue of what a constitution means and what the role of the law should be. But these issues are being debated in China regardless of Hong Kong. A number of mainland legal scholars have published their expert views on the rule of law (for example, Liu, 1996). Citing the Confucian teaching that the ruler should himself set a good example for the people to follow--an orthodoxy almost totally unchallenged throughout the 5,000 years of Chinese history--Jiang told CNN that "he would also adhere to the Basic Law" (Ta Kung Pao, 10 May 1997). So die problem may be resolved by an increasing match between China's understanding of the rule of law and Hong Kong's understanding of it. But time is getting short. Hong Kong needs reassurance that it will continue to be governed by this most basic principle--the rule of law.

The most suffocating argument--that the courts of the Hong Kong Special Autonomous Region cannot challenge an act of the National Peoples Congress--has now been adopted by three Hong Kong judges in the court of appeal. But the problem remains: What can Hong Kong do if the National People's Congress violates the Basic Law? In other words, is the Basic Law higher than the National People's Congress? The pro-Beijing Executive Councillor Chung Sze-Yuen asserted that "in accordance with the Chinese Constitution, the National People's Congress is the supreme executive-cum-legislative organ in China" (South China Morning Post, 16 May 1997).

Although most forceful, the argument of National People's Congress supremacy raises a much more serious and fundamental challenge to the supremacy of the Chinese Communist Party and the 1982 Chinese Constitution. At the national level the Chinese Communist Party avows the "leadership" of "the Chinese people of all nationalities" in the plain text of the Constitution's preamble. Leadership of the Chinese Communist Party is one of the four inviolable cardinal principles of the Constitution. Because the National People's Congress and its local-level counterparts are responsible to the people and subject to their supervision," as per the plain text of Article 3, the Chinese Communist Party has the sole right to represent the people and hence the sole right to supervise the National People's Congress (Ghai, 1997, 90-91). In reality, this supremacy argument is also misplaced, because the Chinese Communist Party is supreme not the National People's Congress or the Constitution. For example, one of the more vexing questions in the forthcoming Chinese Communist Party's 15th National Congress is whether the incumbent premier, Li Peng, will continue as one of the key leaders beyond two consecutive terms. To combat the dangers of personality cults, Articles 79, 87, 124, and 130 of the 1982 Chinese Constitution expressly stipulate in plain text that key leaders are "in continuing service not to exceed two terms" (Ghai, 1997, 89). Ever since the founding of the People's Republic, endless debates in mainland China have centered around this fundamental question of whether the Constitution is supreme.

A more relaxed atmosphere was created by Jiang when he allowed the debate on "ruling the nation accordingly to law"--the rule of law or law bring supreme. The following conceptualization can help solve the question of whether the Chinese Communist Party, the National People's Congress, the Chinese Constitution, or the Hong Kong Special Autonomous Region (SAR) Basic Law is supreme (Ghai, 1997, 149, 219). The Chinese Communist Party's leadership in drafting the Constitution and establishing the National People's Congress manifests the party's supremacy. The party's vow to operate and its efforts to in fact operate within the confines of the Constitution also represent an "exercise" of its supremacy. Likewise, having approved the Basic Law, the supremacy of the National People's Congress requires the congress to operate under the confines of the Basic Law and allow the court to adjudicate on whether it has really so operated. In other words, the supremacy of the National People's Congress is only a smokescreen if the jurisdiction of the court to conduct an in-depth debate is self-censored. It is hoped that a well reasoned debate will benefit China's developing concept of the rule of law and help to define Hong Kong's much-needed autonomy.


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Anthony C. H. Chua is currently a constitutional law research student in the Faculty of Law at the University of Hong Kong. He used to be the Honorary Secretary of the Hong Kong Public Administration Association (HKPAA) and was instrumental in arranging two-way visits between the association and its major counterparts in China. He was also the convener of the Hong Kong Panel at the 1996 ASPA conference in Atlanta (see the report and photo in the newsletter of the Section on International and Comparative Administration (SICA), Global Network 18 (1):2). This article, however, represents only the personal views of the author and in no way reflects any views of the persons or organizations the author has connections with. Comments are most welcome by e-mail to
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Author:Chua, Anthony C.H.
Publication:Public Administration Review
Date:Jan 1, 1998
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