SCMP Tuesday, June 19, 2001
Tung places Basic Law in peril
Tung Chee-Hwa's strong statement that Falun Gong is "without doubt an evil cult", during the Chief Executive's question-and-answer session with legislators last Thursday, is not only a challenge to the freedom of belief and association. It also pushes further the erosion of the rule of law and strains the credibility of "one country, two systems".
Many recall Mr Tung's statement in February, on the last occasion he answered questions in the Legislative Council. At that time, deviating from the prepared script, he said that Falun Gong "has some characteristics of an evil cult". What has happened between then and now was not any upsurge of new activities of the group or any change of the law in Hong Kong. Rather it was a new legal "interpretation" by judicial authorities on the mainland, which has the force of law and was announced by the Xinhua news agency on June 10. It further tightens restrictions against Falun Gong activities and toughens the penalties against any contravention of these restrictions.
It is clearly stated in the Basic Law that no mainland law has any application in Hong Kong unless it is explicitly incorporated into Annex III of the Basic Law, which lists those national laws that do apply in the SAR. Therefore this latest Beijing legislation - in the form of a judicial interpretation - against Falun Gong has no application in Hong Kong. As far as Hong Kong is concerned, Falun Gong remains a society lawfully registered under the Societies Ordinance. As admitted by the Government, the sect has not broken any law. Its followers are entitled to the protection of the Basic Law against any interference of their freedom to practise their belief and to associate with one another.
As the head of the HKSAR Government, the Chief Executive has the duty to implement the Basic Law - this, too, is an express provision of the Basic Law. His blatant disregard of the law of the region, including the Basic Law, is nothing short of shocking. His statement that Falun Gong is "without doubt an evil cult", and in the same breath, that religious freedom does not apply because it is not a religion, is without factual basis and self-contradictory into the bargain.
Yet this time, Mr Tung made his statement boldly and, as he assured Democratic Party legislator Albert Ho Chun-yan, after deliberation. There can be no plainer signal: the SAR Government under his leadership will follow the stance of Beijing, without regard to the position under the law in Hong Kong. In other words, where the Beijing directive is strong, the protection of the law is thin, if not wholly non-existent in Hong Kong.
Of course, this may seem to be stating the obvious. To Beijing, this is only to be expected. I can only say the obvious needs to be stated because government officials persist in holding that the Government respects the rule of law and will abide by it. The last time this was said to Legco was by the new Chief Secretary for Administration Donald Tsang Yam-kuen on May 18. If this is not true, then people like him must stop lying to Legco and to the world.
Nor do I consider it a reason for comfort that Mr Tung also said the time had not yet come for legislation against Falun Gong or "evil cults". Such a statement is meaningful only if the Government truly respects the rule of law. For what the law does not expressly prohibit, everyone is at liberty to do. But if a person or a group can be openly slandered against and stigmatised by the Government with or without any legal basis, then the act of legislation pales into insignificance.
Indeed, inherent in the statement is Mr Tung's view of the law as no more than a stronger way to declare the Government's position. This is typical of ruling by law, and has nothing to do with the rule of law. While Beijing is trying to build up the rule of law on the mainland, it is tragic that the Chief Executive of the SAR is rapidly transforming the rule of law in Hong Kong into ruling by law.
Nor is Mr Tung's statement on Falun Gong an isolated example. An equally serious - though perhaps less sensational - case concerns legislation to ensure that the Hong Kong offices of the Central People's Government (CPG) are bound by local ordinances.
Under the Basic Law the Hong Kong offices of the CPG must obey Hong Kong laws. However, under Cap 1 of the SAR's Interpretation and General Clauses Ordinance, an ordinance does not bind them unless it says so explicitly or by "necessary implication". So it is important to identify the ordinances which should be binding on the CPG and amend these ordinances accordingly.
The amendment can be effected extremely simply by inserting the provision: "This Ordinance binds the state." As early as 1998 it had already been agreed by the Government that at least 15 ordinances should bind "the state" as defined in Cap 1, which includes the CPG's Hong Kong offices and their personnel. Yet up until now, no amendment has been made to enforce this, with the result that the CPG's offices in Hong Kong do not have to obey our laws. The reason, Legco is told, is that Beijing has to be consulted on the wording of any such amendment, and up until now, Beijing has not agreed on the formula.
Another ordinance, the Personal Data (Protection of Privacy) Ordinance, according to the Government, is so complex that Beijing has to be consulted on whether or not CPG's offices should be bound by it. One of its main provisions is to require a group or body to disclose the data it has collected on another person to that person, upon that person's request. It is obviously a matter of proper concern for the Hong Kong public that this should apply to something like the Liaison Office, which was formerly known as the local branch of Xinhua.
After three years, the matter remains at a standstill. Persistent pressure from Legco has brought to light the real situation: namely that this Government is afraid to make any Hong Kong law apply to Beijing's offices and personnel in Hong Kong for as long as Beijing has not given its specific consent. Even the drafting of the law requires Beijing's consent. The provision of the Basic Law again counts for nothing.
Implicit in this is that it is a loss of face for a superior authority to be expressly required to obey a Hong Kong law. The famous saying of Confucius: "The sanction of the law is not to reach the ruling elite" is thus demonstrated. Law is only to be imposed for controlling ordinary folk. The ruling class is itself above the law. To legislate on such a basis makes a mockery of the rule of law.
Margaret Ng Ngoi-yee is a legislator representing the legal profession.