TNAG-1858-FCO40-2633-Legislative-Council-of-Hong-Kong-memoranda-and-minutes-of-me-1989 — Page 22

2056

HONG KONG LEGISLATIVE COUNCIL

5 July 1989

I suggest that the British Government should seek to secure the agreement of the Chinese Government that troops will not be stationed in Hong Kong. This matter cannot be dealt with only through the Basic Law, but requires an amending of the Joint Declaration.

The Basic Law

I accept the view of the FAC that the relationship between the Basic Law and the People's Republic of China (PRC) constitution should be clarified. But I suggest that the correct approach is to stipulate in writing, whether in the Basic Law or in the constitution, those provisions of the constitution which are inapplicable to the HKSAR.

I suggest that it must be stated clearly that the four cardinal principles set out in the Preamble to the PRC constitution, including, for example, the insistence on the leadership of the Chinese Communist Party, would not be applicable to the HKSAR.

As to the power of interpretation of the Basic Law, it is obvious that the FAC is reluctant to leave the final right to interpret the Basic Law with the Standing Committee of the National People's Congress, and has therefore proposed the setting up of a Joint Constitutional Court.

This deserves serious attention.

But a simpler method may be to ask the Standing Committee of the National People's Congress to delegate irrevocably its interpretative powers of the Basic Law to the courts of the HKSAR in keeping with our common law system.

I would also suggest that the power to review the constitutionality of any law enacted by the legislature of the HKSAR should also be delegated irrevocably to the Final Court of Appeal of the HKSAR.

State of emergency

I suggest that the Basic Law should provide that only the Chief Executive be empowered to declare a state of emergency in the HKSAR. For such a power must not be exercised from Beijing. Otherwise, a peaceful demonstration in the SAR, which is frowned upon by Beijing, may be declared as constituting a turmoil in the region, with the result that martial law may be declared as in Tiananmen Square, with the same dire consequences.

Human rights

I am in full agreement with the FAC's call for the immediate enactment of a Bill of Rights in Hong Kong. But this Bill of Rights must be consistent with, and offer no less protection than, both the International Covenant on Civil and Political Rights and the European Covenant on Human Rights.