TNAG-1311-FCO40-1673-Future-of-Hong-Kong-1984 — Page 24

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TELELETTER

FROM R.P. MARGOLIS, DEPUTY POLITICAL ADVISER, HONG KONG.

FILE REFERENCE N F R

DATED & DECEMBER 1984. FOLLOWING FOR C. 0. HUM ESG.,CHONG KONG DEPT. F C 0.

COPIED TO

D. G. BLUNT ESQ., PEKING.

1. C. ORR ESQ., FED, F C 0.

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HONG KONG AGREEMENT ARTICLE BY CHINESE LEGAL EXPERT ON THE JOINT

DECLARATION.

1. A SPECIAL REPORT IN THE WEN WEI PO OF 4 DECEMBER CONTAINS AN

EXTENSIVE SUMMARY OF AN ARTICLE BY ZHANG YOUYU OF THE LEGAL INSTITUTE

AT THE CHINESE ACADEMY OF SOCIAL SCIENCES (CASS). THE STATED PURPOSE

OF ZHANG'S ARTICLE, WHICH WAS PUBLISHED IN CHINA LEGAL REPORT** UNDER THE TITLE A GREAT ACHIEVEMENT FOR IMPLEMENTING THE CONSTIT-

UTION' WAS TO ANSWER CERTAIN MISUNDERSTANDINGS ABOUT THE SIND-

BRITISH JOINT DECLARATION AMONG CHINESE PEOPLE ON THE MAINLAND.

2. ACCORDING TO THE WEN WEI PO THESE MISUNDERSTANDINGS COULD BE

CATEGORISED UNDER 4 HEADINGS:

(A) WHY DID CHINA NEGOTIATE WITH BRITAIN?

(B) IS THE ONE COUNTRY TWO SYSTEMS CONCEPT A VIOLATION OF THE CONSTITUTION?

(C) WILL THE JOINT DECLARATION PROVIDE OPPORTUNITIES FOR BRITAIN TO

INTERFERE IN CHINA'S INTERNAL AFFAIRS?

(D) WILL THE CREATION OF THE HONG KONG SAR RESULT IN A ONE CHINA

ONE HONG KONG SITUATION!!?

3. ON (A) ZHANG EXPLAINS THE BACKGROUND IN STANDARD TERMS: HONG KONG WAS FORCIBLY OCCUPIED BY BRITAIN. IT WAS THEREFORE JUST AND PROPER FOR CHINA TO RESUME THE EXENCKSE OF SOVEREIGNTY OVER HONG KONG. CHINA'S DECISION TO DO SO THROUGH PEACEFUL NEGOTIATIONS RATHER THAN

TO RECOVER SOVEREIGNTY UNILATERALLY AND BY FORCE WAS DICTATED BY

HONG KONG'S HISTORY AND REALITY AND BY THE FACT THAT PEACEFUL

NEGOTIATIONS WOULD MAINTAIN HONG KONG'S STABILITY AND PROSPERITY.

IN ANY CASE, CHINA'S POSITION WAS CLEAR FROM THE OUTSET. THE TALKS

· WERE NOT ABOUT WHETHER SOVEREIGNTY SHOULD BE RESUMED BUT ABOUT HOW

THIS WAS TO BE DONE.

4. ON (2), ZHANG'S ARGUMENT IS (NOT SURPRISINGLY) A LITTLE MORE CONVOLUTED. AFTER REAFFIRMING THE SOCIALIST PRINCIPLES APPLICABLE TO CHINA, AND ENSHRINED IN THE CONSTITUTION, ZHANG POINTS OUT THAT ARTICLE 31 PROVIDES FOR THE SYSTEMS PRACTISED IN SARS TO BE DETERMINED BY THE NATIONAL PEOPLE'S CONGRESS IN ACCORDANCE WITH ACTUAL CIRCUMSTANCES. THE DECISION NOT TO PRACTISE SOCIALISM IN HONG KONG WAS THEREFORE MADE BY THE NPC IN ACCORDANCE WITH THE

CONSTITUTION.

5. ON (C), ZHANG SAYS THAT THE JOINT DECLARATION DOES NOT AMOUNT TO INTERFERENCE BY BRITAIN IN CHINA'S INTERNAL AFFAIRS BECAUSE THE 12-POINT STATEMENT OF CHINA'S POLICY IN THE JOINT DECLARATION IS DETERMINED BY CHINA AND IS NOT SOMETHING AGREED UPON BY BARGAINING BETWEEN THE TWO GOVERNMENTS. THE RESULT OF THE TALKS WAS ENSHRINED IN A JOINT DECLARATION RATHER THAN A TREATY IN ORDER TO ILLUSTRATE THIS POINT. HOWEVER, ZHANG GOES ON TO SAY THAT ''BROADLY SPEAKING, A JOINT DECLARATION IS ALSO INTERNATIONALLY AND LEGALLY BINDING. WE HAVE TO ABIDE BY IT. IN PRACTICE, THIS WILL CAUSE NO DIFFICULTIES.''

6. ON (D), ZHANG POINTS OUT THAT FUTURE HONG KONG SAR WILL BE DIRECTLY UNDER THE AUTHORITY OF THE CENTRAL PEOPLE'S GOVERNMENT WHICH WILL BE RESPONSIBLE FOR DEFENCE AND EXTERNAL AFFAIRS. IT IS ALSO CLEARLY STATED IN THE ELABORATION OF CHINA'S BASIC POLICIES REGARDING HONG KONG (1.E. ANNEX 1) THAT LAWS WHICH CONTRAVENE THE BASIC LAW WILL NOT BE MAINTAINED. ''THE TERM 'EXISTING LAWS REFERS TO THOSE WHICH EXISTED BEFORE THE INITIALLING OF THE

JOINT DECLARATION AND NOT THOSE WHICH EXISTED BEFORE THE JOINT DECLARATION BECOMES EFFECTIVE (INCLUDING NEW LAWS PASSED DURING THE TRANSITION PERIOD. FURTHER MORE, ANY LAWS ENACTED BY THE LEGISLATURE OF THE HONG KONG SAR MUST CONFORM TO THE BASIC LAW AND BE ENACTED IN ACCORDANCE WITH THE CORRECT PROCEDURES. THIS DEMONSTR-

ATES THAT HONG KONG WILL NOT BE AN INDEPENDENT KINGDOM, BUT A REGIONAL GOVERNMENT WITH A HIGH DEGREE OF AUTONOMY UNDER THE LEADERSHIP OF THE CENTRAL PEOPLE'S GOVERNMENT.

7. COMMENT: ZHANG'S ELABORATION OF THE CHINESE SIDE'S VIEW ON THE

REFERENCE POINT IS THE MOST NOTABLE AND MOST UNHELPFUL FEATURE OF THIS ARTICLE, SOFAR NONE OF THE INDEPENDENT PAPERS OR COMMENTAT- ORS HAS PICKED THIS UP. THE PUBLICATION OF ZHANG'S ARTICLE IN THE WEN WEI PO MAY BE PART OF THE PROCESS, WHICH HAS BEEN UNDER WAY SINCE THE PUBLICATION OF THE GREEN PAPER ON THE DEVELOPMENT OF REPRESENTATIVE GOVERNMENT, OF WARNING HONG KONG PEOPLE AGAINST PUSHING FOR A DEGREE OF REFORM WHICH WOULD RESULT IN HONG KONG

BECOMING AND INDEPENDENT POLITICAL ENTITY. EXACTLY WHAT WOULD

CONSTITUTE AN INDEPENDENT POLITICAL ENTITY IN CHINESE MINDS IS NOT, OF COURSE, CLEARLY DEFINED.

SIGNED R.P. MARGOLIS.

ANN