TNAG-1722-FCO40-2415-Future-of-Hong-Kong-Basic-Law-1988 — Page 151

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HONG KONG LEGISLATIVE COUNCIL

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13 July 1988

dilemmas. This solution would also obviate the need for the setting-up of temporary or provisional governmental bodies which are mentioned in the Basic Law draft but which should, in my view, not be pursued. Discontinuity and uncertainty at a time when firm leadership during the first few months and years of the SAR's existence will be particularly needed could then be avoided.

If—as it now appears-we shall continue with a Civil Service government in Hong Kong after 1997, two fairly important constitutional issues still need to be addressed. One concerns the nature of the relationship between the executive and legislative branches, and in particular the question of how legislative proposals will be introduced and dealt with in the Council if government officials are no longer members. Logically government officials should not be elected.

The other question relates to the potential difficulties of a Chief Executive not having the confidence or support of the Legislative Council, nor having any influence over it once the appointment system terminates. Mrs. Selina CHOW has touched on this already. Now, let us assume for the sake of argument that Mr. Martin LEE becomes Chief Executive and that he then faces the sort of opposition to his policies he has had the misfortune to encounter from colleagues in this Chamber during the last three years. How would such conflicts be resolved without creating the threat of permanent instability—even with the safety valves of Council dissolution and/or forced resignation of the Chief Executive becoming available? In this respect the idea to elect the Chief Executive by the Members of the Legislative Council has some merit. On the other hand, would this solution not run counter to the principle of the separation of powers, and would it really increase, and not decrease, the chance of meeting the accountability requirements stipulated in the Joint Declaration? I believe much more discussion is required on this point both here in Hong Kong and within the drafting committee.

Some of these problems might not have to be faced if the drafters had been less keen to just replicate existing structures and had instead embarked upon a somewhat more innovative approach and one that is more reflective of the novelty of Hong Kong's situation and the need to cater for an unprecendented historical event. Perhaps the Joint Declaration has been followed too slavishly; it is no surprise that the drafters got stuck in all those areas where the agreement is silent or obscure.

Where I would also still like to see more informed debate is on the limits of the foreign affairs and defence' authority of the central government vis-a-vis the Hong Kong SAR. I fear that article 12 of the draft will create many interpretational problems in future, especially in light of the rights given to the SAR in articles 117, 119, 131, 139, 140, and 158-165 of the draft. While not a question of principle, it is hoped that the Joint Liaison Group and also foreign governments may be allowed to assist in helping to identify the practical