31 March 1998

Xinhua and Government Law Exemption to be Rushed Through Appointed Legislature

Despite widespread criticism, the Secretary for Justice yesterday pledged to push ahead with the controversial Adaptation of Laws Bill -- which it now emerges will not only exempt China's Xinhua News Agency, but also the entire Hong Kong SAR government from Hong Kong laws. The implications of this bill for the future of the rule of law in Hong Kong are far-reaching and are not even fully understood by the Hong Kong government, which failed to consult the legal profession or outside experts in its rush to force the bill through the appointed Provisional Legislature, itself a body without basis in law.

Today Democratic Party Chairman Martin Lee and legal spokesmen Albert Ho and James To held a press conference to condemn the blitz of the bill through the appointed legislature, which holds its last session on April 6. The ousted legislators called on the government to "withdraw it, amend it or withhold it" until elected representatives and legal experts could consider the bill and its ramifications.

The democrats explained that the proposed law changes violate both the Joint Declaration, which requires (Section 1, Annex 1) that "executive authorities shall abide by the law and be accountable to the legislature," and the Basic Law (Article 22) which dictates "All government offices set up in the Hong Kong Special Administrative Region by departments of the Central Government...shall abide by the laws of the Region." The government preposterously maintains that if a law is passed exempting Xinhua and that law is then complied with, the Basic Law requirement has been met!

The democratic leaders explained that "the crown" was never defined under British law and asked why "the state" is now defined -- and subordinate organs are included. Xinhua defines itself as a news agency, but its top official is the head of the Chinese Communist Party cell in Hong Kong. In China, the party and the state are the same -- but in Hong Kong this mix must not occur. This development is tantamount to the Hong Kong government voluntarily surrendering the SAR's autonomy back to the Chinese central government.

A further major blunder is the inclusion of the Hong Kong government in the definition of "the state." Thus, unless a law expressly states that it applies to the government, it will in the future not apply. Currently, only a dozen statutes state specifically that they apply to the government, so there is a new presumption created that Hong Kong laws will no longer apply to either the Hong Kong government or to Chinese organs in Hong Kong.

Martin Lee commented:

"This is yanking the carpet out from under the legal system in Hong Kong. The Hong Kong government -- perhaps at the behest of China -- is seeking nothing less than to overturn the fundamental principle that the law must apply to all equally. Based on our reading of the bill, this is not an oversight or a failure to understand the implications of the language in the bill, but a deliberate act to exempt the Hong Kong government and Chinese bodies from Hong Kong law. Contrary to what the government says, if this bill passes into law, there will never be an opportunity to amend it, as even the post-election legislature is guaranteed to have a pro-Beijing majority and no private member's bill may be introduced.

This non-application of laws to Government and Chinese officials signals the beginning of the substitution of Hong Kong's rule of law -- 'faat ji' with Beijing's rule of man -- 'yahn ji.' The potential for abuse and corruption in these circumstances is enormous and indeed, invited."

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