TNAG-2714-FCO40-3920-House-of-Commons-Select-Committee-on-Foreign-Affairs-enquiry-1993 — Page 229

SECOND REPORT OF THE FOREIGN AFFAIRS COMMITTEE

SESSION 1988-89

HONG KONG

Observations by the Government on the Second Report

1. The Government made their initial observations on the report of the Foreign Affairs Committee (HC 281-1 of 28 June 1989) in their reply of 1 December 1989 (Cm 927). A number of the detailed recommendations in the Committee's report were dealt with in this reply. But there were a number of other recommendations which the Government's reply could not cover either because these questions remained to be decided in the context of the drafting of the Basic Law or because decisions had not been taken at that time as in the case of nationality and constitutional development. The Foreign and Commonwealth Secretary subsequently announced decisions on these matters on 20 December 1989 and 16 February 1990 respectively.

2. This paper contains the Government's observations on those points in the Committee's report which were left outstanding in their earlier reply because decisions had not been taken, namely:

(i) The Joint Declaration and the Basic Law;

(ii) Actions within Hong Kong;

(iii) British Policy and Actions;

(iv) Vietnamese Boat People.

The Joint Declaration and the Basic Law

Relationship between the Basic Law and the Joint Declaration

3. The Committee took the view that the Basic Law should be the "son of the Joint Declaration rather than of the Chinese Constitution (paragraph 2.7). As the Committee recognises, the Basic Law is a law of the People's Republic of China (PRC). Specific provision for such a law to be enacted by the National People's Congress is made in Article 31 of the Chinese Constitution. However the provisions of the Basic Law are clearly derived from the Joint Declaration. The Joint Declaration provides that the basic policies of the PRC regarding Hong Kong as stated in the Joint Declaration will be stipulated in the Basic Law. The Preamble to the Basic Law (which was adopted by the National People's Congress on 4 April 1990 and promulgated on the same day) in turn states that the basic policies of the PRC regarding Hong Kong have been elaborated in the Joint Declaration and that the Basic Law is enacted in order to ensure the implementation of those basic policies. Thus there is a clear link between the obligations assumed by the PRC in the Joint Declaration and the Basic Law. The Government's concern throughout the drafting process was to ensure consistency between the Basic Law and the provisions of the Joint Declaration. On the whole they are satisfied that this has been achieved. But there are some provisions which they would have preferred to have seen drafted differently.

4. The Committee drew attention to doubts whether the provisions of Article 31 of the Chinese constitution override other articles in the Constitution and took the view that the Preamble of the Basic Law should set out clearly which articles of the Chinese Constitution would apply to the Hong Kong Special Administrative Region (SAR). The Hong Kong SAR will be an integral, if special, part of the unitary state of the PRC. Certain provisions of the Chinese Constitution will therefore apply in or in relation to Hong Kong, even though they may not have direct effect as law. It would not be realistic to dismiss all but Article 31 as having no relevance. But Article 11 of the Basic Law makes clear that the systems and policies practised in the SAR " including the social and economic systems, the system for safeguarding the fundamental rights of its residents, the executive, legislative and judicial systems" will be based on the Basic Law; and Article 5 specifically states that the socialist system and policies shall not be practised in Hong Kong but that the capitalist system and way of life shall remain unchanged for 50 years. The Government would further draw the Committee's attention to a decision also adopted on 4 April which affirms the view of the National People's Congress that Article 31 of the Chinese Constitution does provide sufficient authority to enable the National People's Congress to prescribe different systems in Hong Kong from those applicable elsewhere in the PRC.

197810 B*

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