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Korea, the problems of the Baltic States in the Soviet Union, and especially that intractable problem of Northern Ireland in the UK. So we all of us have a huge responsibility to get this right, and to make it work. And in spite of anything that I have said, I feel a great sense of optimism that we will get it right and that the SAR will be successful, and I hope that both you, Madam Chairman, and I will live long enough to experience that success.
Appendix
Submission to the Drafting Committee for the Basic Law, being comments and suggestions regarding the first Draft for the Basic Law of the Hong Kong SAR published in April 1988 by Hong Kong Urban Councillor W. M. SULLKE O.B.E., J.P.
Hereunder are my comments on the Basic Law in order in Articles and Paragraphs as they appear in the English translation as issued by the Drafting Committee of the Basic Law in the booklet dated April 1988 and received by me in May 1988.
I must emphasize that I am not a lawyer. My comments are based on a forty year residence in Hong Kong during which time I have run a successful business and have gathered considerable experience in the workings of the Hong Kong Government via participation in senior positions in a great many Government advisory committees and in the Urban Council. At this writing I am still active in both business and the Urban Council as well as still sitting on important Government committees.
Chapter I
Article 5: 'The HK SAR safeguards the rights and freedoms of residents and other person in the region in accordance with law'. With what law?? Surely here the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights should be referred to.
Article 6 'Lawful Takeover': Confiscation of property for whatever reason should be strictly circumscribed and spelled out. At the moment this article is too wide.
Article 9: There are a great many Chinese languages. The native language of Hong Kong is Cantonese. If Mandarin is to be forced onto the SAR then this should be said here, but I think that Cantonese and English should prevail in the SAR.
Chapter II
Article 15: In this article the words 'its own currency' should be inserted.
Article 16, paragraph 3: This paragraph is not acceptable as it takes right of final adjudication from the SAR. Only the Supreme Court of Hong Kong should be allowed to rescind a law passed by the Legislature of the SAR if the Court considers that it is not in conformity with the Basic Law, or normal legal procedures. Also, there is no definition of the 'Committee for the Basic Law of the Hong Kong Special Administrative Region'. Such a committee would only be acceptable if it were composed solely of the Chief Justice and/or other senior judges of the SAR. Even that would, in my view, contravene the spirit of the Joint Declaration, and in my view it is essential that any final appeal against laws passed by the SAR legislature must be to the Supreme Court of the SAR and no-one else.
Article 17, paragraph 3: This also, in my view, contravenes the spirit of the Joint Declaration. The words 'national unity' in the third line must be much more closely defined as at the moment, especially with the following words, 'outside the limits of a high degree of autonomy', this would allow a far too wide interpretation and could very easily interfere with the freedoms and workings of the SAR. And in the following paragraph the reference to the committee of the Basic Law is again unacceptable (please see my remark re Article 16). Article 18, paragraph 3, third and fourth lines-Cases relating to the Executive Acts of the Central People's Government': This again in my view contravenes the spirit of the Joint Declaration. Executive Acts of the Central Government could very easily interfere with the two systems, one country, principle or with the capitalist system etc. Under these circumstances the SAR courts must have jurisdiction. I believe the phrase should be deleted as the matter is perfectly well covered in the first two lines of the paragraph.
Article 20, second line: I believe the state affairs mentioned refer to the Government of the PRC and not to the affairs of the SAR, and this should be spelled out.
Article 22: This is an open door through which the Central Government can negate the total Basic Law. In the PRC, in the last forty years the concept of subversion, as it refers to the Central People's Government, has altered considerably practically every five years. And at certain times actions which are a matter of course in the SAR landed people in jail in the PRC under the heading of subversion. I believe the words 'subvert the People's Central Government' should be deleted. At the very least this article should include the words 'other than those consistent with this Basic Law'.
Chapter III
Article 38: This should read: "This Basic Law of the Hong Kong SAR incorporates totally the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights". Only in this way can the rights of Hong Kong people be properly protected.
Article 39: This Article as it stands negates Article 38, and if Article 38, as I have suggested automatically incorporates the International Covenant, then the matter of Article 39 is covered by Article 4 of the International Covenant, which allows certain restrictions in case of public emergencies which threaten the life
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Korea, the problems of the Baltic States in the Soviet Union, and especially that intractable problem of Northern Ireland in the UK. So we all of us have a huge responsibility to get this right, and to make it work. And in spite of anything that I have said, I feel a great sense of optimism that we will get it right and that the SAR will be successful, and I hope that both you, Madam Chairman, and I will live long enough to experience that success.
Appendix
Submission to the Drafting Committee for the Basic Law, being comments and suggestions regarding the first Draft for the Basic Law of the Hong Kong SAR published in April 1988 by Hong Kong Urban Councillor W. M. SULKE O.B.E., J.P.
Hereunder are my comments on the Basic Law in order in Articles and Paragraphs as they appear in the English translation as issued by the Drafting Committee of the Basic Law in the booklet dated April 1988 and received by me in May 1988.
I must emphasize that I am not a lawyer. My comments are based on a forty year
residence in Hong Kong during which time I have run a successful business and have gathered considerable experience in the workings of the Hong Kong Government via participation in senior positions in a great many Government advisory committees and in the Urban Council. At this writing I am still active in both business and the Urban Council as well as still sitting on important Government committees.
Chapter I
Article 5: 'The HK SAR safeguards the rights and freedoms of residents and other person in the region in accordance with law'. With what law?? Surely here the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Acts should be referred to.
Article 6 Lawful Takeover': Confiscation of property for whatever reason should be strictly circumscribed and spelled out. At the moment this article is too wide.
Article 9: There are a great many Chinese languages. The native language of Hong Kong is Cantonese. If Mandarin is to be forced onto the SAR then this should be said here, but I think that Cantonese and English should prevail in the SAR.
Chapter II
Article 15: In this article the words 'its own currency' should be inserted.
away the Articles 16, paragraph 3: This paragraph is not acceptable as it takes right of final adjudication from the SAR. Only the Supreme Court of Hong Kong should be allowed to rescind a law passed by the Legislature of the SAR if
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the Court considers that it is not in conformity with the Basic Law, or normal legal procedures. Also, there is no definition of the 'Committee for the Basic Law of the Hong Kong Special Administrative Region'. Such a committee would only be acceptable if it were composed solely of the Chief Justice and/or other senior judges of the SAR. Even that would, in my view, contravene the spirit of the Joint Declaration, and in my view it is essential that any final appeal against laws passed by the SAR legislature must be to the Supreme Court of the
SAR and no-one else.
Article 17, paragraph 3: This also, in my view, contravenes the spirit of the Joint Declaration. The words 'national unity' in the third line must be much more closely defined as at the moment, especially with the following words, 'outside the limits of a high degree of autonomy', this would allow a far too wide interpretation and could very easily interfere with the freedoms and workings of the SAR. And in the following paragraph the reference to the committee of the Basic Law is again unacceptable (please see my remark re Article 16). Article 18, paragraph 3, third and fourth lines-Cases relating to the Executive Acts of the Central People's Government': This again in my view contravenes the spirit of the Joint Declaration. Executive Acts of the Central Government could very easily interfere with the two systems, one country, principle or with the capitalist system etc. Under these circumstances the SAR courts must have jurisdiction. I believe the phrase should be deleted as the matter is perfectly well covered in the first two lines of the paragraph.
Article 20, second line: I believe the state affairs mentioned refer to the Government of the PRC and not to the affairs of the SAR, and this should be spelled out.
Article 22: This is an open door through which the Central Government can negate the total Basic Law. In the PRC. in the last forty years the concept of subversion, as it refers to the Central People's Government, has altered considerably practically every five years. And at certain times actions which are a matter of course in the SAR landed people in jail in the PRC under the heading of subversion. I believe the words 'subvert the People's Central Government' should be deleted. At the very least this article should include the words 'other than those consistent with this Basic Law'.
Chapter III
Article 38: This should read: "This Basic Law of the Hong Kong SAR incorporates totally the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Acts'. Only in this way can the rights of Hong Kong people be properly protected.
Article 39: This Article as it stands negates Article 38, and if Article 38, as I have suggested automatically incorporates the International Covenant, then the matter of Article 39 is covered by Article 4 of the International Covenant, which allows certain restrictions in case of public emergencies which threaten the life
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