"I agree in principle with the arrangements which you propose for an Electoral Committee [ie the Annex I model], which could be established in 1995. The precise details of how this should be done can be discussed between our two sides in due course. hope that the five principles which you have agreed can be reflected
Meanwhile, I in the Basic Law."
It has been suggested that these sentences actually constitute an agreement in themselves. However, for there to be an agreement in law, or in diplomatic negotiation, there must be a meeting of minds at which both sides commit themselves to be bound by definite terms which constitute the agreement.
The Foundation believes that the above quoted letter is not an agreement. It is rather an invitation to further negotiation, with the aim of reaching an agreement in due course. If the invitation had been taken up, if further discussions on the "details" of the Election Committee had commenced, then it is possible that the two powers would indeed have reached an agreement to the Annex I model for the 1995 Election Committee. However, the opportunity was not taken up. And over the two-and-a-half years since February 1990, the invitation may fairly be said to have lapsed.
The Foundation also believes that the Basic Law fails to reflect the five principles concerning the 1999 Election Committee that are referred to in Mr Hurd's letter.
For example, one of the five principles was that the selection of Legislative Councillors by the Election Committee should be by secret ballot. Article 5 of Annex I indeed provides that the Election Committee shall elect the Chief Executive by secret ballot. However, Article 2 of Annex II states specifically that,
"...the method for electing members of the Legislative Council by the Election Committee shall be specified by an electoral law introduced by the Government of the Hong Kong Special Administrative Region and passed by the Legislative Council."
In other words, the Basic Law provides that the SAR Government is free to specify for the 1999 Election Committee some other method of election than secret ballot. The secret ballot method of voting is thus not reflected in the Basic Law. Therefore, even if the above-quoted remarks by Mr Hurd in his letter of 12 February 1990 are taken as an agreement then the conditions on which such agreement was based have not been met and such agreement, if it is considered ever to have existed, would now be void.
It should also be borne in mind that it is inappropriate to read the three above-quoted sentences from Mr Hurd's letter in isolation. The sentences are extracted from a series of letters that dealt with many topics. The overall picture given by the letters is that Mr Hurd was seeking improvements in a number of issues and from time to time showed a readiness to make concessions on one issue if thereby progress could be made on other issues. In his House of Commons speech on 16 February 1990, Mr Hurd states that the key issues, in
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