29 March 1998

Democrats Condemn New Legislative Threat to Rule of Law

Democratic Party Chairman Martin Lee today denounced the introduction of a government bill (the Adaptation of Laws Bill) which would exempt Xinhua and other Chinese government bodies from Hong Kong law and questioned the motivations of the government in rushing the bill through the appointed Provisional Legislature, which will be wound up on April 6.

The government action to give immunity from prosecution to Chinese official bodies is in contravention of Article 22 of the Basic Law, Hong Kong's constitution, which states clearly that:

"All government offices set up in the Hong Kong Special Administrative Region by departments of the Central Government, or by provinces, autonomous regions, or municipalities directly under the Central Government, and the personnel of these offices shall abide by the laws of the Region."

The government's move to place Chinese state bodies above the law comes in a month which has seen the rule of law undermined by two politically sensitive non-prosecutions which were widely condemned. The non-prosecution of the former de facto Chinese embassy, Xinhua News Agency, for violations of the Privacy Ordinance led to Chief Executive Tung exonerating Xinhua by calling the offense "a technicality." Following the second non-prosecution, of newspaper owner and Beijing-appointed CPPCC member Sally Aw after she was alleged by law enforcement agencies to have conspired to commit fraud, the Secretary for Justice said that this non-prosecution was "in the public interest."

Martin Lee commented:

"This bill is a major threat to the rule of law -- which by definition means no individual or body is above the law. If the government succeeds in exempting bodies such as Xinhua from Hong Kong laws, it will clearly have a harmful effect on local and international confidence in Hong Kong's system of justice. The perception will be that Hong Kong is moving inexorably toward the mainland system of rule by law, where the state uses laws to control the citizens, and the laws do not apply to the state or state officials. This move is also particularly concerning in the context of other recent developments which have undermined the rule of law and appear to represent a disturbing new trend towards two standards of justice."



A ROW has broken out over a government bill that appears to exempt Xinhua and other mainland bodies from at least 14 of Hong Kong's laws. The Adaptation of Laws (Interpretative Provisions) Bill changes colonial definitions in all the laws of Hong Kong, replacing phrases such as ``the Crown'' with ``the State''.

Introducing it to the provisional legislature last month, Secretary for Justice Elsie Leung Oi-sie said ``the majority of the amendments that the Bill seeks to make are straightforward and technical''.

The Government is keen to have it passed before the provisional body is disbanded next month.

The bill would be retrospective to July 1, 1997, and could wipe out the alleged criminal offence committed by Xinhua after ousted Frontier legislator Emily Lau Wai-hing attempted to use privacy laws to see the agency's files on her.

Democratic Party chairman Martin Lee Chu-ming yesterday called on the Government to drop the measure until an elected Legco was in place after legal experts discovered hidden implications.

Mr Lee said the bill appeared to ignore the provision in the Basic Law which said all mainland bodies and their staff would abide by SAR laws. 'They are committing a breach of the Basic Law and giving up a lot of jurisdiction unjustifiably,'' he added.

Professor Peter Wesley-Smith of the University of Hong Kong said the complex interaction of the new definitions with other laws meant it was "very plausible'' to argue that a loophole would be created that would exempt Xinhua and other mainland bodies from some laws.

Legal advisers for the Privacy Commissioner's office have written to the Department of Justice seeking clarification.

Deputy Commissioner Robin McLeish said the office's lawyers believed that if the bill was passed in its current form, Xinhua would become exempt from the Personal Data (Privacy) Ordinance.

"That's what it appears to us and that's why we're seeking clarification,'' he said. No answer has yet been received.

Xinhua is expected to be exempt from certain laws relating to discrimination, arbitration and the environment under the new bill.

Asked if the bill would exempt Xinhua from the privacy law, a government spokesman said it would merely "put it beyond doubt'' that the law did not apply to them in the way it would not have applied to British government bodies here. ``The effect is to maintain the legal position as it was before and after reunification,'' he added.

Professor Wesley-Smith said: "It appears that the law is being amended with the effect of exempting the New China News Agency, among other bodies, from the ordinary operation of Hong Kong law.''

Ms Lau said yesterday the apparently ``underhanded'' legal change would damage the Government's reputation. "When something is controversial it should be properly discussed,'' she added.

Mr Lee said: "When Hong Kong was a crown colony there was no suggestion that Hong Kong would be given a high degree of autonomy. But you can't treat Hong Kong as a Chinese colony.''

The bill does not mention Xinhua and provisional legislator Kennedy Wong Ying-ho, who chairs the committee examining the bill, said that in its three meetings members had not discussed the issue.

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