TNAG-1862-FCO40-2639-Future-of-Hong-Kong-Basic-Law-1989 — Page 87

CONFIDENTIAL

2. Much of the area* covered by the Joint Declaration and the Basic Law is not directly affected by recent events. There are still

issues to be resolved in those areas but they are not related to the use of force by the Central Authorities in Hong Kong.

(i) Internal security

3. The core of the problem raised by recent events is the existence

and extent of the powers and responsibilities of the Central

Authorities for defence (JD 8) as it relates to internal defence,

and the influence that the SAR authorities may have on the use of

that power.

Connected with that core problem is the extent to

which political power is distributed in Hong Kong and the effect that the internal distribution of power may have on the way in which the Central authorities may be influenced. The possibility of the

limiting effect on the use of the coercive power of the entrenchment

of the human rights covenants in Hong Kong also needs to be

considered.

4. It could hardly be denied that in a unitary state, the Central Authorities must have the necessary power to preserve the safety and unity of the state or that this role is included in the power and

responsibility of the Central Authorities for defence (JD 8). (It

is unlikely, short of some form of (almost certainly ineffective)

treaty regime guaranteeing the quasi-independence of Hong Kong,

which would be totally unacceptable to China, that there is any alternative to the Central Authorities having the authority and

power to act to preserve the safety and unity of the state). The

Joint Declaration (JD 28 and 147), however, provides that the

maintenance of public order in the SAR is the responsibility of the

SAR authorities and (in JD 148) that the PLA shall not interfere in

the internal affairs of Hong Kong. These provisions are carried

forward into Article 14 of the Basic Law. They are not necessarily

inconsistent with the ultimate responsibility of the state ("tumult"

* JD paras 3(3), (6)-(9), 6 and Sections III, IV, V, VI, VII,

VIII, IX, X, XI and XIV

BL Chs IV, Sections 4 to 6, Chs V to VII

CONFIDENTIAL