"Although, the Joint Declaration differs in form from most
international agreements, it has international legal effect and is legally binding on the two signatories. The Joint Declaration is certainly sufficiently specific to be binding
Of course,
conforming to the Joint Declaration means to conform to its substantive content; it does not mean the Basic Law must imitate the Joint Declaration word for word. The Joint Declaration is an international agreement and a political document; and therefore it cannot be converted directly into domestic law. Especially important in this regard is that the special terms used in the document are not all within the legal lexicon and therefore cannot
all be utilised in the Basic Law."
3.9.
I am not sure what the legal lexicon is in the PRC, but I note that the Joint Declaration speaks of: (a) an elected legislature; (b) an accountable executive; (c) an independent judiciary with power of final adjudication; yet under the Basic Law, these commitments seem to be reflected in the Basic Law in a less than full way. This is of concern to me; and in seeking to work out what it might imply in practical terms, I believe it is fair to say that in the circumstances of Hong Kong's impending transfer to the sovereignty of the PRC, the tension between political exigency and legal norm, between the requirement of individual cases and assumptions of the common good, does need to be examined afresh in the context of the HKSAR system of government. the context of this paper, this raises issues concerning: -
In
(a)
The relationship between the CPG and the SAR.
(b)
The relationship between the SAR executive and the SAR legislature.
(c) The relationship between the CPG legislature and the SAR
judiciary.
I raise these issues in Part Four with a number of preliminary thoughts in my mind, which in due course I would like to consider with people in Beijing, Hong Kong, and London. Put in a summary form, they are as follows:-
(a)
(b)
I suspect that the determinant of PRC attitude towards many aspects of the Hong Kong Special Administrative Region has been and will be to ensure that it mounts no threats to the influence of the Communist Party (CCP) over Communist Chinese territory. Thus,the determining factor of the CPG's policy in relation to some Hong Kong issues is likely to be its potential impact on the rest of China, rather than its impact on Hong Kong.
The government of the PRC does not intend to impose communism on Hong Kong in violation of the Joint Declaration; but neither is it going to risk any "contamination" spreading from Hong Kong to the
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