Hong Kong deputy at the National People's Congress

Serge Berthier.- You were a Hong Kong Executive Counselor (Exco) at the time of the joint-declaration in 1984. Today, you are a member of the National Assembly in Beijing. From being involved in Hong Kong politics and policies in the 1980s, you are now in effect serving the Chinese government.

Maria Tam.- I am the only Hong Kong person who has gone through the Joint-Declaration (1), the Basic Law (2) and all the preparatory works that set off Hong Kong, including the Preliminary Working Committee which set the foundation work of the Preparatory Committee (3), and the Provisional Legislative Council, to serve today as a link between Hong Kong and the Central Government of China. After my appointment (by the Chinese government) to the Basic Law Committee (4), I was elected in the mid- 1997 as a member of the National People’s Congress.

S.B.- Hong Kong has its own legislative council to draft its own set of laws. You are a Hong Kong deputy but your lawmaking responsibilities are in Beijing. Is there an overlap of responsibilities between your duties and those of an member of the Legco?

M.T.- No. The role of the NPC deputy is different. As you know, China has always said that the region will have its own system. Hence, the principle of one country, two systems. It is a very strict principle that central government officials and Central government bodies of which the National Peoples' Congress is one of the highest authorities in China do not interfere with the privy autonomous areas of the Hong Kong Special Administrative Region.

S.B.- Indeed, but we read in the local press that there is a lot of arguments about what exactly are the boundaries of such autonomy.

M.T.- The fact is that it is not a difficult area to define. I know them first hand because I drafted the Basic Law. Most of the central and local government relationship’s chapter contents are in chapter one, two, seven and nine of the Basic Law. The rest already assumes that a high degree of autonomy belongs to the Special Administrative Region.

S.B.- If there is no overlap then, what are exactly the duties of a Hong Kong deputy in China, if he/she does not represent the interests of his/her constituency and is not involved in its local politics?

M.T.- When we are in mainland China, we enjoy all the rights and privileges and powers of any National Congress deputies which mean that we have the legislative responsibility, we can criticize the government departments of the Central government, we can refer complaints vis--vis local or central government departments to the National People’s Congress standing committee for investigation. We can speak on national issues ranging from environmental protection to reform of state industry to loss of jobs and social welfare, foreign affairs, trade and WTO membership, anything under the sun actually.

S.B.- But what do you do that is specific to the fact that you are a Hong Kong elected representative?

M.T.- We do six things. The first one is to comment on all transborder issues, anything that links Hong Kong to the local governments or the central governments in the mainland. This may involve, mutual judicial assistance, conflict of laws, trade links, infrastructure developments, right of abode issues when it touches on the mainland people coming in to Hong Kong, etc…. On all matters that straddle Hong Kong and China, we can put our ideas and suggest to the Central government how to deal with them.

The second thing is that, although we cannot inspect any of the government departments in Hong Kong, we can inspect in China the government apparatus and the way the administration works. It means we can suggest to the Central authorities how to make use of the Hong Kong expertise to develop mainland China but also as a matter of fact, to develop Hong Kong affairs as well. Again it is a matter of developing Hong Kong and mainland links at all level. To enhance cooperation, if you want. Our third duty is to discuss all the national laws that are going to be passed in mainland China and to analyze them from a Hong Kong angle. For example, when we deal with commercial laws, or stock-exchange regulations, even land-reform or management of high-rise buildings, we can inject our own experience and expertise in those fields and our knowledge of the common law system. We draw on Hong Kong's past experience to comment on the national laws.

Our fourth duty is in respect of complaints of Hong Kong residents with their experience in China. We can investigate and ask for investigation which may involve certain charges against local law enforcement bodies in the mainland or public prosecutors and the local or central level to reflect any grievances Hong Kong’s permanent residents might have against mainland China.

Our fifth duty is to come up with constructive suggestions, which may be rejected by the Central government, on ways to improve cooperation and development between the region and the mainland.

S.B.- Are they suggestions coming from the Hong Kong authorities or from the Legislative Council, or your own?

M.T.- We have regular meetings in Hong Kong in which we pool the experience of our friends, our business associates in Hong Kong. As you know, Hong Kong enjoys the advantage of being the hub of a lot of international communication, of being a window wide open to the world. So we can look out while the rest of the world is looking at Hong Kong. We can draw from that perpetual motion to give some input in China.

The last function we have, and it is important, is to tell Hong Kong people what is the meaning of one country.

S.B.- To remind the Hong Kong people that they are in China?

M.T.- Yes, because we keep forgetting here at times that there is a central government. Even our Court of Final Appeal keeps forgetting. It cannot enjoy a superior status to the National People’s Congress. So we have to be outspoken on issues which involve the constitutional law of China, the national laws of China which involve Hong Kong, the Basic Law and anything which will allow the rest of the world and Hong Kong people to be reminded of the fact that we are part of China, that we have one country.

S.B.- You seem very clear in your mind about the duties you have to perform, but some other Hong Kong deputies to the NPC are complaining that they do not have a clear mandate of responsibility.

M.T.- Maybe they should study the Basic Law a little bit more and if some of us seem to be confused, it is maybe that their attendance record at our meetings is not what it should be.

S.B.- You have been a Legislative Council member in Hong Kong. Do you see a substantial difference between the duties of the Legco members and the duties of a NPC member?

M.T.- It is a very different setting and a different ball-game. If you study the national law that applies to the deputies of the National People's Congress and the Basic Law that applies to Hong Kong, you see clearly where you are and what you are supposed to accomplish. It is not the same thing at all.

S.B.- In what way?

M.T.- As one say, Caesar to Caesar, God to God. I think the worst possible situation is to try to play God when you are Caesar and Caesar while you are God. I think we have to accept that.

S.B.- Is it a way to say that the Court of Final Appeal was playing God when it is only Caesar? Or that the Legco members are only Caesars and have to listen to God?

M.T.- If you look purely at the effectiveness point of view, can you imagine how inefficient it is when you have a NPC deputy and one Legco member, both speaking on the Court of Final Appeal issue? Who is the National People’s Congress standing committee going to listen to? Surely when it is within your purview of responsibilities, you have to do your best but at the moment, it’s like the little boy who’s got his finger in the dam, thinking that if he stays in that position, he has solved the problem.

S.B.- What do you mean?

M.T.- I mean other people have their role to play, they get paid for doing their job, let them do it. I expect there will be a real debate about the problem of abode. But right now, the counselors are playing chicken. They should debate it. They did not touch it. It was too hot till it was too late.

S.B.- Why do we have this terrible confusion about who is supposed to have the right to live in Hong Kong and who has not after so many years of discussion?

M.T.- The reason for the confusion is this: in Hong Kong we practice the common law system. It means that when you look at a document, and if you don’t think there is any doubt in its interpretation, you don’t look into extraneous evidences.

In this case, the content of article 24 of (5) the Basic Law is copied from the Joint-Declaration. At the time of the drafting of the Joint-Declaration, there was no detailed agreement between the Chinese government and the British government as to what exactly is the concept of right of abode. When we wrote the Joint-Declaration, I participated in all those meetings, and so, I speak first-hand. What we were trying to do, I speak for the British side, was to introduce a concept that was just not there in Hong Kong, which we called right of abode. In those days, under the colonial rules, people who were entitled to stay in Hong Kong were called “Hong Kong belongers”. UK people could come to Hong Kong and had the right to land. That was all. There was no such a thing as the right of abode and the Joint-Declaration was drafted before the total concept of right of abode was conceived and matured and nurtured. Later, the British introduced the concept of right of abode, and said whoever enjoys the right of abode cannot be deported to anywhere else but Hong Kong if they should commit an offense abroad. That was to make sure that Hong Kong would retain its judicial control over its own people rather than people being deported to the mainland. That having been agreed, when we wrote the Basic Law, both sides were still trying to figure out exactly what it meant. It was not yet written down. But by 1996, the details of who enjoys the right of abode was not only conceived but communicated to each other at the joint-liaison group and a resolution of the preparatory committee laid down actually what it means.

Now this is extraneous evidence which the Court did not look into. This is all black-and-white and passed at the National People’s Congress. And not only that, it is reflected in the provisional Legco amendment number three of the Immigration Ordinance, which has a total concept description of the right of abode.

S.B.- What is the sticking point?

M.T.- The problem of the children born out-of wedlock or born to mainlanders before they became Hong Kong permanent residents. The Court of Final Appeal looked at article 24 (of the Basic Law) which was written in 1990 before the concept was completely delivered. It is very clear it did not say that illegitimate children cannot come, it did not say that at the time of birth the children have parents that have already obtained a right of abode. Therefore the Court is saying: "let them all in".

S.B.- Why is it in your view, and the Chinese government view, improper, since on a human point of view, it is a sensible opinion?

M.T.- Legally speaking, the Court totally ignored three facts, one is that the joint-liaison group had already understood the situation, two the preparatory committee had already passed a resolution which had been accepted by the National Congress in a public session in 1997, and three, the provisional Legco had already passed a law according to that legislature. The Court threw out three pieces of very important evidence which, in their own mind, become irrelevant. Not only that, they had the option under article 158 of the Basic Law (6) to refer to the Central government and ask what exactly was meant. They did not but looked at article 24 which grants a high degree of autonomy so they concluded they don’t have to refer. They throw that one out too. They look at article 22, sub-article 4 which say that persons coming from the mainland will have to obtain permission to leave China and the number has to be agreed between Hong Kong and the Central government. They look at that, but concluded that it had nothing to do with article 24 because that article concerns people who already have a right of above, and article 22 concerns other people. That was wrong. There was expert evidence coming from China which said that whoever enjoys the right of abode and will leave China has to have permission, the so-called one-way permit. Furthermore, migrants are subjected to a quota system that we have been negotiating to 150 per day. They ignored that. So the Court came out with the conclusion that anybody can come in, as soon as possible, not subjected to a one-way permit. And to top it all, the judges ruled that they are supreme, because after consideration, the Basic Law has to prevail and therefore if a Chinese resolution is against the Basic Law, the resolution is void.

S.B.- Do you think that the ruling is a way for the Court to define its territory, to test the boundaries of its authority?

M.T.- Yes, definitely, beyond the issue, the Court of Final Appeal has been to trying to define its territory to the highest possible limit of its judicial authority.

S.B.- In your view, on a legal angle, the Court is wrong in its ruling. But since we talk about children and families, don't you think that it would be immoral to prevent children to be reunited with their fathers, and the mothers with their husbands?

M.T.- The point is that it is doubtful that the people of Hong Kong want two or three million mainlanders here and I would be very surprised to see a legitimate wife wanting to have an illegitimate son with her.

S.B.- Do we know how many families are in a situation where there are illegitimate children from a second mainland wife?

M.T.- We do not really know how many cases we are dealing with except we know there are many (7). People coming from the mainland to Hong Kong cannot find jobs. It is a problem. Then, if they do find jobs, they put a down-pressure on the wages. The income of the people who are now living here will drop. Not only that. We already have a large influx of mainlanders and we have just discovered that we are now back to the highest rate of tuberculosis compared to Europe. It does affect the whole fabric of Hong Kong. Mainlanders, if they are numerous, won't be able to survive and they will wreck Hong Kong. And don't forget that if they come, they will be entitled to a SAR passport to go round the world. And they may go anywhere to survive, except to China. We can't allow that to happen. It is the reputation of Hong Kong that is at stake.

S.B.- Right now, what is the Hong Kong government doing about it?

M.T.- It is trying to assess how many people are involved. They will have to guess-estimate since it is extremely difficult to have the information. China does not have it and the people who have illegitimate families are not forthcoming. Let’s say that the estimate runs into millions. They will be an uproar and the general public will say that they don’t want them (8).

S.B.- But then, what will happen?

M.T.- In China, whatever the Court of Final Appeal is saying, movements of people are controlled. If you live in Beijing, and move to Shanghai, you have to de-register in Beijing and register in Shanghai. So there are controls in place and people concerned by the ruling have not started to trickle down to Hong Kong. The border is double-guarded and the authorities are not processing anybody beyond the legitimate application.

S.B.- In a way, what you describe is a strict application of the one country, two systems principle. The Hong Kong ruling does go beyond the border and it protects the SAR from being flooded by a human wave. China has already too many people and a couple of million less would be a relief. Do you think the central government cares one way or another, beyond political sensitivities about the territory or the Court of Final Appeal?

M.T. - China does care. Its intention for Hong Kong is to make it Manhattan. It is true that the numbers are meaningless for the central government. One million people out of a billion is not much but China is doing its best to protect Hong Kong.

S.B.- To protect Hong Kong against Hong Kong, in a way, or so it seems?

M.T.- Yes. That is ironic but you could say that.

S.B.- In some quarters, such solicitude is viewed as interference and there are grumbles about the necessity of amending the Basic Law. Do you think it is relevant at that stage, when it has only been in place for less than two years?

M.T.- They have been talking about amending the Basic Law since the day it was promulgated in 1990. So it is not new. For me, the debate, between the number of seats to be elected directly and the devolution of power, and so on and so forth, has taken place between the year 1985 and the year 1990. Any issue we see coming back today was debated at length in those five years and I see nothing new warranting a review. Our priorities should be the economy.

S.B.- Certainly, but on the political front, Hong Kong will face an election in September 1999 that was unscheduled, since it is due to the abolition of the Regional Council and the Urban Council and the creation of new district boards. The abolition has been seen by some as a way to reduce the voice of the democrats.

M.T.- The old arrangement, with two Councils for one city was no longer efficient. It was outmoded. The outcry is not surprising. The Councils had been there a long time, and were, traditionally, with directly elected members, when you had none at the Legislative Council. But time has passed and things are different. The two councils are too expensive, they waste a lot of money and do little work. So the change is for the better. But there, I am entering dangerous territory. Being a NPC deputy, I don't want to comment on local politics.

S.B.- I understand, but you live in Hong Kong and you are a taxpayer, so I believe that you can, as a private person, judge whether or not your city is run efficiently or not and whether it is becoming poorer or richer. One worrying trend, in that respect, is the creeping welfare mentality that has been emerging ever since the days of Governor Patten. The social programs of one sort or another are now a big chunk of the budget and recently, a further escalation by way of a compulsory medical scheme has been proposed, which would bring the percentage of mandatory contributions of one sort or another way beyond what it is in the rest of Asia and very close to Western levels. What do you think?

M.T.- In my view Hong Kong is still the last bastion of capitalism in Asia. However, with this new political system coming in for the election of year 2000, we have to be concerned by the fact that the rental housing lobby is, by its sheer size, one person out of two being housed in public estates, the strongest of any bloc. Under such circumstances, it will be very difficult if we don’t change our housing policy to achieve the political balance we need to maintain our capitalist economy and to have the proper legislation to sustain it. As I believe it is essential to keep Hong Kong as a capitalist place, I think it is essential that we tackle the problem.

S.B.- But that problem was created by the administration and the Housing Authority in the first place.

M.T.- Indeed, and the paradox is that the administration will have to do a turn. I know that the Housing Authority is fully behind the government on that matter since its chairman, Rosanna Wong, who is also an Executive Counselor has publicly called for an overhaul. The administration will have to follow.

S.B.- What are the main issues that you feel are fundamental for the future, besides the problem of the political patronage of the rental housing lobby?

MT.- The first issue I see is that Hong Kong will have to accept that competition is primarily coming from China. Of course it is coming from elsewhere as well, such as our traditional competitors like Taiwan or Singapore, but Hong Kong's survival depends on how best we can use the surrounding areas of the Pearl River delta. The issue goes beyond Hong Kong. I never believed that the place could survive on its own in spite of all its (financial) reserves. Today I am even more convinced that it can't survive on its own. So first of all, we have to see ourselves as part of mainland China.

S.B.- Hopefully the Manhattan of China

M.T.- Yes, with an hinterland actually in the Pearl River delta. Geographically and physically we are close to that. But we need to enhance our cross-border cooperation in a coherent way. It is a must.

S.B.- Hong Kong has a very narrow-based local economy. How can it expand its cooperation with China further?

M.T.- That is the second issue. Our people must realize that our present education system does not stimulate creativity. In the past, we have been spoon-fed all along by circumstances and our mission has been narrowed-down to property investment and to stock-exchange. It is too narrow. We have to look now to China and see what opportunities are there. For that, we need to educate our young professionals to be able to be pioneers in China. If we don’t do that, the educated young people of China will do their own thing and leave us behind. I think we have been too proud of our ourselves and too complacent. If we don’t believe there is competition coming from across the border we will lose out. We need in that respect to be more like Singapore where they are educating their young men and gearing them towards exploring the China market. Today, we are still too deeply entrenched in the colonial thinking.

S.B.- Currently, the Chief Executive, Tung Chee-hwa, is speaking of the need for stability. Stability at government level means most of the time, standstill. How long can Hong Kong afford to stay frozen into transitional issues which do not prepare for the future?

M.T.- I think, at the government level, that Mr. Tung and his Executive Counselors know that we are on borrowed time. The civil service is aware of it but has not fully apprehended what it really means. The real point is that the general public has not, I think, been giving too much thought about that. People of all walks of life are still entrenched in their old way of thinking because Hong Kong is more free, is more capitalistic and it is a place where you “must” do business with China. I am afraid that is a role which will erode if we don’t improve. Shanghai is coming, Fuzhou is coming, Beijing is coming.

S.B.- Yes, but don't you think that they are still a long way behind, even Shanghai and the Pudong area which has not yet really taken off?

M.T.- China works on five-year plan. When the government concentrates on pockets, rather than on China overall pictures, things go pretty fast. I would say that we do not have more than a two five-year plan margin, and rather less. So Hong Kong’s people will have to start pretty quickly to think of being part of Greater China and we have to start doing something about it.

S.B.- Stability is then in the way, for what you propose is to move forward. But the perception from outside is that the government is not able for one reason or another to move forward.

M.T.- I don’t think I can make comments to that extent. It is clear that the government has to deal with a lot of transitional issues which need to be ironed out. The other point is that the vision of Tung Chee-hwa and the Executive Council members will need to be clear, from top-to-bottom, in the civil service before something creative can be effective, and that needs time.

Autumn 1999


1.- After two years of negotiations, representatives of the United Kingdom and the People's Republic of China initialed on 26 September 1984 a draft Agreement on the Question of Hong Kong. The negotiations were held in strict confidence, although the Executive Council in Hong Kong was consulted throughout. The Agreement was signed on 19 December 1984 in Beijing by the Prime Ministers of the two countries. On 27 May 1985, instruments of ratification were exchanged and the Agreement entered into force on that date. On 12 June 1985, the Agreement was registered at the United Nations in New York by both the British and Chinese Governments. In the Joint Declaration, the United Kingdom declares that it will restore Hong Kong to the People's Republic of China on 1st July 1997. The Chinese Government declares its basic policies, under the guiding principle of 'One Country, Two Systems', towards Hong Kong after resuming exercise of sovereignty over it

2.- The drafting of the Basic Law began in 1985 when the National People's Congress appointed the Basic Law Drafting Committee (BLDC), comprising over 50 mainland and Hong Kong members. The Basic Law Consultative Committee (BLCC) of exclusive Hong Kong membership was set up to canvass the views of Hong Kong people. The first complete draft of the Basic Law was published in April 1988, followed by a five-month public consultation exercise in which a large variety of views were expressed. The second draft of the Basic Law, endorsed in February 1989 by the Standing Committee of the NPC for further consultation, reflected many of these views. The second consultation exercise ended in October 1989. In December the five BLDC Special Groups reconvened to propose amendments to the second draft in the light of the outcome of the second consultation exercise. The final draft was endorsed by the BLDC in its ninth plenary session in February 1990 and was enacted and promulgated by the NPC on 4 April 1990.

3.- On 4 April 1990, the National People's Congress (NPC) adopted a decision to establish within the year 1996 a Preparatory Committee (PC) for the SAR which shall be responsible for preparing the establishment of the Region and shall prescribe the specific method for forming the first Government and the first Legislative Council. The PC was also responsible for preparing the establishment of the Selection Committee for the First Government. The original idea was that the Legislative Council in place in June 1997 would carry on until the year 2000. However as a result of Governor Patten's decision to alter the electoral laws for the 1995 election without the consent of the Chinese government, the NPC decided that its term will expire on June 30, 1997 and a provisional Legislative Council will take over until new elections under the original electoral laws were held (they took place in May 1998). As a result of such decision, many issues had to be solved and the Chinese government took the step to appoint a provisional preparatory Committee to look at the transitional issues arising from the scraping of the Legislative Council.

4.- The NPC established a Committee for the Basic Law of the Hong Kong Special Administrative Region under its Standing Committee. Its purview is to study question arising of the implementation of Articles 17, 18, 158 and 159 of the Basic Law and submit its views thereon to the Standing Committee of the NPC.

Article 17 deals with the reporting of the laws enacted by the legislature of the SAR, article 18 with national laws that shall apply to the SAR (or shall not apply), article 158 deals with the power of interpretation of the Basic Law which is vested in the Standing Committee of the NPC, and article 159 deals with the power of amendment.

5.- Article 24 defines what are permanent residents and non-permanent residents of the SAR.

6.- Article 158 stipulates that the power of interpretation of the Basic Law is vested in the Standing Committee of the NPC, and it is the NPC that shall authorize the courts of the SAR to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region.

7. - After the interview, the Hong Kong government declared that more than 1.6 million mainland-Chinese could claim right of abode as a result of the court ruling. Some of the numbers released are merely extrapolations. It said that 520,000 people born out of wedlock will benefit from the court ruling. I addition, their children will benefit too, adding up 645,000 people within seven years. The government has been criticized for inflating the figures in order to sacred the population.


8. - Indeed, the government's figures have stirred an outcry so strong that even the Democratic Party, seen as the champion of human rights , has suggested that the Basic Law be amended to limit the number of people eligible to enter Hong Kong. Under the common law system, there is no mechanism for the court itself resolving the issue. It is unlikely that the Basic Law be amended, therefore the most likely course of event will be for the Standing Committee of the NPC to make a new interpretation of the relevant articles in the Basic Law, but it will in effect amount to overruling Hong Kong highest court.

Autumn 1999