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Although "answering questions raised by members" would indicate a fairly comprehensive range of accountability, the structural limitation of the Article ("in the following respects") falls short of the unlimited quality of JD50 and suggests the possibility of an expressio unius argument. In particular, are administrative matters included in the matters for which the Government is answerable? The doubt is particularly significant
in the light of a Chinese predeliction for what they refer to as an "administration led Government".
The question of the consistency of Article 64 with JD50 has also been raised by the Office of Members of the Executive and Legislative Councils of HK (OMELCO) in its recent memorandum on the BL and in an opinion by Sir W Wade and Sir Z Cowan, the latter of which states that the BL fails to carry out the plan of JD50. The Wade/Cowen opinion also draws attention to the absence of any requirement of the Chief Executive (the head of the Government of the HKSAR) to resign if he loses a vote of confidence in the legislature. Although this would provide an additional measure of responsibility in the Executive, its absence would not seem to be inconsistent with the terms of the JD, and the inconsistency with JD50 could be cured by a simple provision that the Executive shall be accountable to the Legislature. I enclose a copy of the Wade/Cowen opinion; the relevant passages are at paragraphs 24 and 29.
(b) Articles 106/107: These articles are as follows:"
106: "The Hong Kong Special Administrative Region shall follow the principle of keeping expenditure within the limits of revenues in drawing up its budget, strive for a fiscal balance, avoid deficits and ensure that the budget is commensurate with the growth rate of its gross domestic product".
107: "The Hong Kong Special Administrative Region shall practise an independent taxation system.
The Hong Kong Special Administrative Region shall, taking the low tax policy previously pursued in Hong Kong as reference, enact laws on its own concerning types of taxes, tax rates, tax reductions and exemptions and other matters of taxation".
The corresponding provisions of the JD are JD79, 82 and 96 which provide that the HKSAR "shall deal on its own with financial matters, including disposing of its financial resources and drawing up budgets", "shall use its financial revenues exclusively for its own purposes" and "may decide its monetary and financial policies on its own". It is clear that Articles 106 and 107 put a fetter on the discretion of the SAR and indeed from the drafting history of the Articles it is apparent that this was the intention of the representatives of the business community on the BLDC who were responsible for them. What is equally significant is that these articles are so drafted that the question whether, for example, a taxing law or
CONFIDENTIAL