TNAG-1722-FCO40-2415-Future-of-Hong-Kong-Basic-Law-1988 — Page 118

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HONG KONG LEGISLATIVE COUNCIL · 13 July 1988

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boundaries and that the map should have legal effect. Members are satisfied with article 1 which makes the region an inalienable part of China, but consider that the formulation of ‘comes directly under the Central People's Government' in article 11 requires clarification and that article 21 which amplifies this status ought to be appropriately redrafted to the effect that the departments and provinces and so on, of the Central People's Government "shall not interfere in the affairs of the Hong Kong Special Administrative Region'.

(2) Permanent residents of the Special Administrative Region. Members are inclined that as the region is constituted by people with the right of abode, a separate article should appear in Chapter I defining this right of abode instead of simply referring, in article 3, to ‘permanent residents' in connection with the composition of the region's executive authorities and legislature. Members consider that article 23 in Chapter III could be removed to Chapter I. In so doing, the first and last paragraphs of article 23 and article 41, both in Chapter III, will become superfluous and Chapter III could then concentrate on the civil rights of the people.

(3) Substantive areas of powers of the Special Administrative Region. Members take note that articles 2 as drafted could be construed to be inconsistent with the Joint Declaration which stipulates that the 'region will enjoy a high degree of autonomy, except in foreign and defence affairs which are the responsibilities of the Central People's Government. With regard to external affairs provided for in article 12 and Chapter VII, Members consider that there is a difference between authorising the region to deal with relevant external affairs specified in Chapter VII and the preferable formulation of authorising the region to deal with all matters except foreign affairs and defence. Members recognise that the most difficult hurdle is that of dispelling the problematic concept of 'residual power.' In the event, the Basic Law Drafting Committee cannot be persuaded to adopt the presumptive approach in drafting the relevant articles. Meinbers are of the view that article 15 should be redrafted to the effect that the region 'enjoys all rights of executive powers, including, together with all the headings and so on, and other administrative affairs in line with the exercising of a high degree of authonomy' and article 19 which makes it possible for additional powers to be delegated to the region, should be retained if the presumptive approach cannot be adopted. On specific provisions governing external affairs, Members feel that article 157 in Chapter VI and article 159 in Chapter VII should be amended by adding the words 'or "Hong Kong" after 'Hong Kong, China' in order to allow more flexibility for quasi-governmental and private bodies participation in external affairs. Members also suggest that article 164 should be amended to allow the establishment of missions to deal with economic, trade and other external affairs already authorised by the Central People's Government.

(4) Types of powers of the Special Administrative Region. Members generally welcome the provision in the latter half of article 2 in Chapter I that the region is *to enjoy executive, legislative and independent judicial power, including that of