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Administrative Region shall enjoy executive, legislative and independent judicial power, including that of final adjudication. The power of final adjudication shall be vested in the Court of Final Appeal in the SAR. The Chief Executive of the SAR shall be selected by election or through consultations while the Legislature of the SAR shall be constituted through elections.
as a
Within the next two years after the publication of the Sino-British Joint Declaration, certain leaders of the PRC attended legislative assemblies of various European countries, America, Canada and Japan to publicize the concept of 'one country, two systems' openly. The concept was well received by the people of Hong Kong and people all over the world, and was regarded good solution to the problems of Hong Kong. However, when the Draft Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (for Solicitation of Opinions) was published in April this year, we found that the principle of 'one country, two systems' stated in the Draft was not equivalent to the principle of 'Hong Kong people ruling Hong Kong' in meaning.
Before going into the contents of the Draft Basic Law for Solicitation of Opinions, I would like to introduce to you a journal published by the Americans. It is called 'Journal of Chinese Law'. Mr. SULKE has just mentioned the contents of one of the articles contained in the journal and written by Mr. ZHANG You-yu. The 'Journal of Chinese Law' was published in Spring this year. Four of the articles in the Journal were written by four Chinese legal experts who happen to be important members of the Drafting Committee for the Basic Law. Now let me briefly introduce the views of these four legal experts because their views are relevant to what I am going to say on the Draft Basic Law. One of them is Mr. ZHANG You-yu, an outstanding figure among the legal experts in Mainland China. He introduced what was meant by "one country, two systems' and clearly stated in Pages 9 and 13 of the journal that the policy of 'one country, two systems' would eventually result in the affairs of Hong Kong being interfered or dominated by the Central Government.
Another one is Mr. XIAO Wei-yun who explained what executive acts are. Mr. SULKE has just listed out those articles in the Draft Basic Law that have to be altered. One of them is Article 18 on 'executive acts'. Mr. XIAO thought that executive acts meant any acts made in the name of the state. Will it then be China's definition of 'executive acts'? If that is the case, the implication of 'executive acts' will then be very extensive. According to Article 18 in the Draft, the Central Government's influence on the future HKSAR will be even more extensive. I shall analyse this point later.
The third one is Mr. Wu Jian-fan who explained what residual powers are. He said that as Hong Kong and China do not belong to a federal government, there is basically no such problem as residual powers. All powers should therefore go to the Central Government.
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The fourth one is Mr. WANG Shu-wen who discussed the problem of human rights. As I do not intend to discuss this problem, I am not going to talk about Mr. Wu's view in detail.
According to the argument put forward by the three Chinese legal experts who are members of the Drafting Committee, I can clearly see why the final legislative, executive and judicial powers as stated in Articles 16, 17 and 18 are vested in China. As I have just said, I believe that the principle of 'one country, two systems' does exist. However, I do not believe that this policy will be fully implemented. Article 16 says that if the National People's Congress considers that any law made by the Special Administrative Region is not in order, it has the power to check its enactment. Article 17 says that the State Council has the power to direct HKSAR to act accordingly. Article 18 states that courts of HKSAR shall have no jurisdiction over cases relating to the executive acts of the Central People's Government.
In view of the above provisions, we can see that the Central Government has the full or final administrative power over the future SAR government.
Moreover, Articles 169 and 170 are also very important as these two articles stipulate that the powers of interpretation and amendment of the Basic Law are vested in the Central Government. In principle and judging from the state's point of view, this is not a problem. But this will constitute some sort of impediment to the policies of 'one country, two systems' and 'Hong Kong people administering Hong Kong.'
Having read the Basic Law, I feel that the Mainland drafters have made a lot of safeguards in the Basic Law. This reflects that they have no confidence in Hong Kong people or that they have not basically accepted the Sino-British Joint Declaration or the policy of 'Hong Kong people administering Hong Kong' as agreed by Mr. ZHAO Zi-yang, the leader of China. This is evident from the following two points:
The first point concerns the appointment of the Chief Executive and principal officials of the SAR. In China, the National People's Congress is the institution that has the highest authority to make decisions. The People's Congress has the power to appoint and remove executives of equivalent rank. For instance, County People's Congress has the power to appoint and remove the county chief while the National People's Congress has the power to appoint and remove the Premier. However, the Legislature of the future HKSAR has no such power. On the contrary, only the Central Government has the power to appoint and remove executives of the SAR.
The second point concerns the method for the formation of the first government of the SAR in the Annex of the Draft. Throughout the course of formation of the SAR government, the Central Government will exercise great influence and executive power.
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Administrative Region shall enjoy executive, legislative and independent judicial power, including that of final adjudication. The power of final adjudication shall be vested in the Court of Final Appeal in the SAR. The Chief Executive of the SAR shall be selected by election or through consultations while the Legislature of the SAR shall be constituted through elections.
as a
Within the next two years after the publication of the Sino-British Joint Declaration, certain leaders of the PRC attended legislative assemblies of various European countries, America, Canada and Japan to publicize the concept of 'one country, two systems' openly. The concept was well received by the people of Hong Kong and people all over the world, and was regarded good solution to the problems of Hong Kong. However, when the Draft Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (for Solicitation of Opinions) was published in April this year, we found that the principle of 'one country, two systems' stated in the Draft was not equivalent to the principle of 'Hong Kong people ruling Hong Kong' in meaning.
Before going into the contents of the Draft Basic Law for Solicitation of Opinions, I would like to introduce to you a journal published by the Americans. It is called 'Journal of Chinese Law'. Mr. SULKE has just mentioned the contents of one of the articles contained in the journal and written by Mr. ZHANG You-yu. The 'Journal of Chinese Law' was published in Spring this year. Four of the articles in the Journal were written by four Chinese legal experts who happen to be important members of the Drafting Committee for the Basic Law. Now let me briefly introduce the views of these four legal experts because their views are relevant to what I am going to say on the Draft Basic Law. One of them is Mr. ZHANG You-yu, and outstanding figure among the legal experts in Mainland China. He introduced what was meant by "one country, two systems' and clearly stated in Pages 9 and 13 of the journal that the policy of 'one country, two systems' would eventually result in the affairs of Hong Kong being interferred or dominated by the Central Government.
Another one is Mr. XIAO Wei-yun who explained what executive acts are. Mr. SULKE has just listed out those articles in the Draft Basic Law that have to be altered. One of them is Article 18 on 'executive acts'. Mr. XIAO thought that executive acts meant any acts made in the name of the state. Will it then be China's definition of 'executive acts"? If that is the case, the implication of 'executive acts' will then be very extensive. According to Article 18 in the Draft, the Central Government's influence on the future HKSAR will be even more extensive I shall analyse this point later.
The third one is Mr. Wu Jian-fan who explained what residual powers are. He said that as Hong Kong and China do not belong to a federal government, there is basically no such problem as residual powers. All powers should therefore go to the Central Government.
HONG KONG URBAN COUNCIL
Page 65 of 182
123
The fourth one is Mr. WANG Shu-wen who discussed the problem of human rights. As I do not intend to discuss this problem, I am not going to talk about
Mr. Wu's view in detail.
According to the argument put forward by the three Chinese legal experts who are members of the Drafting Committee, I can clearly see why the final legislative, executive and judicial powers as stated in Articles 16, 17 and 18 are vested in China. As I have just said, I believe that the principle of 'one country, two systems' does exist. However, I do not believe that this policy will be fully implemented. Article 16 says that if the National People's Congress considers that any law made by the Special Administrative Region is not in order, it has the power to check its enactment. Article 17 says that the State Council has the power to direct HKSAR to act accordingly. Article 18 states that courts of HKSAR shall have no jurisdiction over cases relating to the executive acts of the Central People's Government.
In view of the above provisions, we can see that the Central Government has the full or final administrative power over the future SAR government.
Morcover, Articles 169 and 170 are also very important as these two articles stipulate that the powers of interpretation and amendment of the Basic Law are vested in the Central Government. In principle and judging from the state's point of view, this is not a problem. But this will constitute some sort of impediment to the policies of 'one country, two systems' and 'Hong Kong people administering Hong Kong.'
Having read the Basic Law, I feel that the Mainland drafters have made a lot of safeguards in the Basic Law. This reflects that they have no confidence in Hong Kong people or that they have not basically accepted the Sino-British Joint Declaration or the policy of 'Hong Kong people administering Hong Kong' as agreed by Mr. ZHAO Zi-yang, the leader of China. This is evident from the following two points:
This first point concern the appointment of the Chief Executive and principal officials of the SAR. In China, the National People's Congress is the institution that has the highest authority to make decisions. The People's Congress has the power to appoint and remove executives of equivalent rank. For instance, County People's Congress has the power to appoint and remove the county chief while the National People's Congress has the power to appoint and remove the Premier. However, the Legislature of the future HKSAR has no such power. On the contrary, only the Central Government has the power to appoint and remove executives of the SAR.
The second point concerns the method for the formation of the first government of the SAR in the Annex of the Draft. Throughout the course of formation of the SAR government, the Central Government will exercise great influence and executive power.
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