TNAG-2225-FCO40-3196-Political-relations-between-Hong-Kong-and-Australia-1991 — Page 24

itself is made by the NPC. What is made can be unmade.

Article 5 of the Constitution of the PRC provides that no law

may contravene the Constitution. Thus no law, even the Basic

Law on Hong Kong, may entrench a system of law or government

in Hong Kong which is beyond the reach of the constitutional

organs of the PRC. This is simply basic constitutional law

which any beginning student of that discipline would

understand. It demonstrates the fact that the ultimate

guarantee of "two systems",

"two systems", and respect of basic rights and

the independent judiciary in Hong Kong rests not upon the

Basic Law or even upon the NPC of China. It rests upon the

will of the brokers of power in China and their willingness

to tolerate a separate and different system of law and

government in Hong Kong. That willingness will endure only

so long as such separateness is thought to advantage the PRC

or where its dismantlement would be thought to cause an

outcry in the world community with disproportionate damage to

the PRC. The events of June 1989 demonstrate that, when

their basic needs of survival are thought to be challenged,

those with power in Beijing will move to preserve it and

shore it up without undue concern about international

responses.

Sixthly, there is the absence of a tradition of

judicial independence in China. Under the Constitution of

the PRC, the separation of powers and the function of the

courts as the arbiter of power, is not guaranteed. It is the

Standing Committee of the NPC which resolves disputes about

where power lies under the Constitution of the PRC, not the

Supreme People's Court. This means that neutral

determinations of power, by an

an independent court with a

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