Recently, many members of the public have called or written to me posing the question: Since the Hong Kong and Macao Affairs Office of the State Council, the Central Government's Liaison Office in Hong Kong and the SAR government deem the so-called "referendum" precipitated by the Civic Party and the League of Social Democrats to be illegal, why are the perpetrators not punished and the mistake not rectified?

I think we should try to understand this issue from two angles.

First, the two parties, in orchestrating the resignations and faux "referendum", have certainly violated the basic principles, or at least the spirit of the rule of law in modern society.

There are two basic principles involved: one is that public power can be exercised only where and when authorized by law; and the other is that private citizens can exercise their rights where and when not prohibited by law.

In their capacity as public officers, legislators are exercising public powers. As such, they must abide by the first principle. The Basic Law does not authorize the SAR government to organize referendums, so lawmakers, who have vowed to abide by the Basic law, must not organize "referendums" by resigning and participating in the ensuing by-elections, mounted at great cost to public resources.

Usually, according to legal theories, "violation of the law" concerns two different aspects - the spirit of the law and the provisions of the laws themselves.

Since Hong Kong does not have any law against legislators resigning at will or with ill intention, the majority of jurisprudents, represented by professor Albert Chen of the Faculty of Law of the University of Hong Kong, opine that the "referendum" violates the first basic principle - public power cannot be exercised where and when it is not authorized by law.

At present, the SAR government cannot invoke any specific provisions to penalize the five legislators for resigning with ill intention. Chief Executive Donald Tsang's statement that the lawmakers took advantage of the legal loopholes underscored the absence of such legal provisions.

Hence the next step the SAR government and the Legislative Council should take is to enact a law to forbid lawmakers from attempting to stage "referendums" in the future, through collective resignation.

The author is a Professor of Constitutional Law

(HK Edition 04/16/2010 page2)