On 16 January 2004, Professor Xiao Weiyun, a member of the Basic Law Drafting Committee and being called as one of the "four Basic Law protectors" by the Hong Kong media, expressed his views on constitutional development of Hong Kong together with Basic Law provisions relating to political structure in a forum in Hong Kong.

1. Role of Central Government over constitutional development

Professor Xiao said, "The central government has every right to involve itself in and to have a say in the constitutional development of Hong Kong because this involves State affairs and the political system."

However, he disagreed with the idea of election of the Hong Kong SAR's chief executive by universal suffrage in 2007. Universal suffrage, he said, had nothing to do with the quest for "returning power to the people".

The central government must step in because (constitutional development) involves the relationship between the central and the SAR authorities, the relationship between one country and two systems, as well as the prosperity and stability and future development in Hong Kong, he said.

"Since the chief executive is appointed by the central government, (Annex I of the Basic Law) is therefore worded in a way that the appointment requires the approval of the Standing Committee of the National People's Congress," he said. "That is why President Hu Jintao expressed serious concern on constitutional development in Hong Kong. It was not any 'ordinary' nor 'trivial' concern and we must not take these few words lightly."

2. Pace of Hong Kong's constitutional development

Regarding the pace of constitutional development, Professor Xiao said there was gradual progress as the number of directly-elected members of the Legislative Council has been increasing every term to reach 30 in 2004. For the election of the chief executive, the size of the Election Committee has also increased from 400 to 800.

"It is clearly written that if there is a need, the selection method of the chief executive after 2007 can be amended, and it shall not be amended if there is no need," he said. "If we really meant universal suffrage in 2007, we would have put it down in writing. The reason why we did not put it there was simply to look at the actual situation and be progressive."

Referring to the call for "returning the power to the people", he said the power was returned when Hong Kong was reunited with China on July 1, 1997. "To whom should the power be returned?" Professor Xiao asked. "It is not right to say universal suffrage is tantamount to returning power to the people."

In a later occasion, he repeated earlier comments that the election of the chief executive in 2007 was definitely not an option, as it was not in accordance with the principle of "gradual and orderly progress" under the Basic Law. He said the Basic Law stated that achieving universal suffrage of the chief executive was the "ultimate goal". He said, to fulfil the requirement for "gradual and orderly progress", it could take Hong Kong more than 30 years to achieve universal suffrage for the election of the chief executive.

3. Court of Final Appeal's power to interpret Basic Law

Professor Xiao also queried power of LegCo and the Court of Final Appeal to interpret the Basic Law.

He noted that Hong Kong courts had said they could declare legislation invalid if it was inconsistent with the Basic Law. On this point, Professor Xiao disagreed.

While Professor Xiao did not cite any examples, the Court of Final Appeal, in its rulings on several right-of-abode cases, struck down various pieces of domestic immigration legislation on the grounds they were inconsistent with the Basic Law. He questioned whether it was in line with the principle of an executive-led government (which was not written into the Basic Law) to give local courts such judicial vetting power. The mini-constitution says all Hong Kong laws must be consistent with the Basic Law.

While it contains no provisions that direct the court to strike down inconsistent legislation, Article 158 says the NPC Standing Committee shall authorise local courts to interpret, on their own, provisions in the Basic Law that fall within Hong Kong's jurisdiction.

But Professor Xiao said: We believe the power to vet whether laws are inconsistent with the Basic Law rests with the Standing Committee. It has no reference about giving such power to Hong Kong courts.

4. Vote of no-confidence in the LegCo

Professor Xiao also said the legislature had no legal powers to hold votes of confidence in principal officials. That means, it is questionable for the President of the LegCo to approve such motion to be moved in the LegCo meeting.

If government is not stable and can be toppled today or tomorrow, how can the economy develop? Therefore, no-confidence votes against principal officials are in breach of the Basic Law, he said.

Principal officials are appointed by the central government. But you demand them to step down. Are they conforming to the central government or to you [lawmakers]? he said.