TNAG-1851-FCO40-2626-House-of-Commons-Select-Committee-on-Foreign-Affairs-enquiry-1989 — Page 119

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SECOND REPORT FROM

the plans the PRC has to use Hong Kong's economic dynamism to modernise the mainland economy and strengthen China's economic standing in Asia. We believe that the PRC may find it necessary to give stronger guarantees based on the Joint Declaration and reflected in the provisions of the Basic Law in order to re-establish the confidence and trust of Hong Kong and the rest of the world in the Territory's future stability, security and prosperity.

2.4. Nonetheless we agree with the Governor of Hong Kong, Sir David Wilson, that "Once you open up an existing treaty to which both governments have committed themselves you make the thing open-ended and you do not know what you will come out with at the end." Hong Kong's future is inextricably linked to that of China. We strongly doubt, whether the hardline regime endures in China or the pendulum swings back to install a more moderate Government, that the PRC will agree to re-open negotiations on the Joint Declaration itself as opposed to the Basic Law. We believe therefore that it would be more profitable for the British Government to reinforce the undertakings in the Joint Declaration both by its own. actions, and, when it becomes possible, in ncgotiations with the Chinese. Accordingly we recommend that the Joint Declaration is retained as providing the best and surest treaty base for the future of Hong Kong. It is the implementation of its provisions, particularly through the Basic Law, on which we must concentrate.

2.5. It is important nevertheless to find ways to restore credibility to the Joint Declaration. It is already registered at the United Nations (UN). There could be a stronger role for the UN to play. Although the UN can no more provide absolute guarantees for Hong Kong's future than Britain, its weight and influence could provide valuable reassurances. China is a permanent member of the Security Council and has always hitherto valued its role at the UN and honoured its international treaty obligations. At the very least China should give formal undertakings to the Security Council as to the Joint Declaration, Basic Law and the security of Hong Kong's future.

The Basic Law

2.6 The Joint Declaration states that the "basic policies of the People's Republic of China [as set out in the Joint Declaration] regarding Hong Kong will be stipulated in a Basic Law of the Hong Kong Special Administrative Region [SAR] of the People's Republic of China, and they will remain unchanged for 50 years". The second draft of the Basic Law was published in February 1989. It was proposed that the consultation period within Hong Kong should last until the end of July 1989 and that the final version of the Basic Law would be promulgated in early 1990. On 12 June, Sir David Wilson told us that “the whole process is going to be delayed. Clearly... it should be delayed so that there is now time for adequate consultation in this new situation."2 As we mentioned above, both the Drafting Committee and the Consultative Committee have suspended their work. It is impossible to predict how long it will be before either can start work again. Nonetheless, if the Joint Declaration is to be retained as the foundation of the Hong Kong SAR's Government and administrative system, then the details of that system must be built up by means of a Basic Law.

2.7. The Basic Law will be a law of the PRC, enacted by the National People's Congress. The power to make such a law (ie to set a Special Administrative Region) is contained in Article 31 of China's Constitution. In a number of submissions received by the Committee, doubts have been raised as to whether the provisions of Article 31 override other articles of the Constitution, as they must do if the provisions of the Basic Law and of the Joint Declaration are to become a reality. Mainland Chinese drafters have been vague on the application of the PRC Constitution to Hong Kong, and because of the very many areas of direct conflict between the draft Basic Law and the PRC Constitution, it is essential that the relationship between the Basic Law and the Constitution is clarified. We were told by a member of OMELCO that Chinese drafters had described the Basic Law to him as the "son" of the PRC constitution. In the light of the Chinese Government's lack of respect for the fundamental rights of citizens provided by the "father", we believe that a less dependent relationship must be sought. We would favour explicit references to the Joint Declaration in the revised Basic Law, so that its provisions are seen to derive from the Joint Declaration. Furthermore, the preamble of the Basic Law should be explicitly made part of the Law, and should set out clearly what articles of the PRC Constitution will apply to the Hong Kong SAR. It is worth noting, for example,

IQ 887.

2 Q 876.