CONFIDENTIAL
MEMORANDUM ON CERTAIN ISSUES RELATING TO CONSISTENCY BETWEen the PROVISIONS OF THE JOINT DECLARATION AND THE BASIC LAW AND THE FULL IMPLEMENTATION OF THE JOINT DECLARATION
Background
1.
The Joint Declaration (JD) is a treaty between the UK and the People's Republic of China which sets out the policies of the People's Republic of China with regard to Hong Kong when the latter reverts to China in 1997. At JD29 it is stated that these policies will be "stipulated in a Basic Law .....by the National People's Congress" [NPC] of the PRC The Chinese insist that the drafting of the Basic Law (BL) is their responsibility, though they have associated a number of HK residents in the process through a BL Drafting Committee (BLDC) and sought wider views for their drafts through a BL Consultative Committee (BLCC) in Hong Kong.
2. Although HMG accept that the drafting of the BL is a matter for the Chinese we for our part insist that since the JD is a treaty, we are entitled to ensure that the BL is consistent with the JD and is fully implemented as necessary in the BL ("consistency" in this memorandum is used, in short, both for discrepancies between the BL and JD and for failure to implement the JD) Further, notwithstanding their insistence on their responsibility for its drafting the Chinese have, until recently, welcomed our comments generally on the drafts and there have been confidential discussions between FCO and HK lawyers and Chinese lawyers which have resulted in changes in the evolving text. They still say they welcome our views but, as part of a deterioration in the machinery of cooperation following the events of 3/4 June, they appear reluctant to have further meetings between lawyers.
3.
The draft BL can be criticised on three main grounds:
(a) there are a limited number of inconsistencies with the JD.
(b) there are a great many matters, both big and small, which are not satisfactory or where we would have drafted differently, but which we cannot say are not consistent with the JD. An example of this derives from the very general terms of the JD relating to the Executive and the Legislature see JD46 to JD50
which have allowed the draftsmen a very wide choice in implementing the JD and where the solutions they have chosen are not satisfactory either to ourselves or to legal or more liberal elements in HK.
(c) on purely technical drafting grounds the text leaves much to be desired. This is, no doubt, due in part to its having been drafted by five committees and to the inadequacy of experienced editing
This memorandum is essentially concerned with item (a). We are not asking the Attorney-General to concern himself with item (b) or (c).
LL JAAE
CONFIDENTIAL
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